Universit degli Studi Roma Tre

Facolt di Giurisprudenza
Cattedra in Diritto Internazionale
e European udicial S!stems

Tesi di "aurea
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RE"%T'RE "%URE%(D'
C+iar,mo -ro., -aolo $envenuti "uigi Romano
C'RRE"%T'RI
C+iar,mo -ro., Giandonato Caggiano
C+iar,mo -ro., Enrico #ezzetti

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a mio Nonno




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nternational Organizations [hereinafter O] have grown in the last decades both in
importance and in number gaining essential relevance as non-State actors in the international
scenario. Notwithstanding such significance, the presence of Os and, more specifically, the
relationship with both their member States and third States, still falls in the grounds of
ambiguity. This uncertainty derives from the immunities usually granted to Os both in national
and in international courts. n addition, the latter very rarely have jurisdiction to consider
questions relating to Os, for instance only States may address and stand in front of the
nternational Court of Justice [hereinafter CJ] in contentious cases[1].
Such unclearness embraces the definition of O, as results clear from the 1986 Vienna
Convention on the Law of Treaties between States and Os and between Os, which opted for
a minimalist approach to the subject by defining them as "intergovernmental organizations[2].
n the opinion of professor Philippe Gautier, an O can be defined as "an autonomous entity,
set up by a constituent instrument, which expresses its independent will through common
organs and has a capacity to act on an international plane[3].
The nternational Law Commission [hereinafter LC] has been contributing to the
clarification of their role by elaborating a series of draft articles regarding the responsibility of
Os. Article 2 of the draft articles defines an international organization as follows: "an
organization established by a treaty or other instrument governed by international law and
possessing its own international legal personality. International organizations may include
members, in addition to States, other entities[4]. As will be stressed later on, the
Commission found and continues to find difficulties in the elaboration of such articles. This is
due mainly to the lack of practice in such field and to the impossibility, as affirmed by part of
doctrine, to extend in toto the discipline on the responsibility of States to Os.
Necessary premise to this survey consists in pointing out the existence of major
differences among States and Os, especially in the field of personality[5]. n fact, States are
the only subjects of international law to have a full international legal personality. t is
necessary to keep this in mind during the analysis, since from the incapacity to recognize the
differences in the personalities of States and Os resides the major part of the difficulties
relatively to the attribution to States of the unlawful acts committed by or through international
organizations.










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Obligatory premise to the topic of international legal personality of international
organizations is the same meaning of international personality. Such concept, recalling the
thought of Kelsen, is central in order to identify the subjects of international, or domestic law,
to which the law attributes rights and duties[6]. Therefore the term personality has to be seen
only as a "shorthand for a proposition that an entity is endowed by international law with legal
capacity[7].
Two are the main theories of personality. The first theory conceives personality as a
fiction[8], distinguishing the natural person from the legal one; this last characterized by the
inability to act and by the inborn lack of personality[9]. The realist theory, having as major
exponents Maitland and Gierke, on the contrary affirms the real existence of such entities,
constituting real persons having a will of their own[10].
Central problem, independently from the point of view to be preferred, is how to
distinguish the will of the entity from that of its' members and, moreover as a corollary, if these
last must be kept completely separate from the entity they compose. Nevertheless conceiving
personality as a "bundle of rights, competences, and obligations[11] has the positive effects
on one side of subordinating it to the presence of an effective attribution more than on a norm
formally providing it and, on the other, of gradating it[12]. The conception of a flexible and
gradable personality results to be in conformity with the position taken by the CJ, which
affirmed that "the subjects of law in any given legal system are not necessarily identical in
their nature or in the extent of their rights, and their nature depends upon the needs of the
community.[13] Such graduation exists between the international legal personality of States,
original and equivalent for all, and that of international organizations, on which more will be
said in the following pages.





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Before focusing on the problems arising from a possible extension of the rules on State
responsibility[14], an analysis of the main features of personified Os appears necessary. As
an obligatory premise to our topic, it is widely accepted in the international community that the
legal personality of an organization is founded on the implicit or explicit will of its member
States. t has also been widely affirmed the subjective constitutive element is not sufficient by
itself to found the legal personality of an O, as it appears essential the presence of an
effective autonomy and independence of the organization from its member States. [15]
The necessity of an effective autonomy has caused a series of problems especially in
the case of Os, originally and effectively independent, losing the latter only in a second
moment. As for States, these organizations, for a part of doctrine, once endowed with legal
personality cannot be deprived of it. Nevertheless, failing the autonomy requisite, State
members exercising overwhelming control cannot shield behind such personality avoiding the
responsibility deriving from the unlawful acts that, if committed directly by them, would have
constituted a violation of international law[16].
The question whether Os are endowed with international legal personality,
autonomous and distinct from that of their member States, has its origin and its first solution in
a leading case of the nternational Court of Justice[17]. The Court, in an Advisory Opinion of
1949 dealt with the issue of the Reparation for the njuries suffered in the Service of the
United Nations [hereinafter eparation case].
n particular the controversy regarded the existence of the right of the UN to bring a
claim for the murder of Count Bernadotte, a Swedish diplomat and noble. The Count had
been appointed in 1948 as UN Mediator for Palestine by the UN General Assembly and sent
for this purpose to srael. His proposals, including the creation of a Union between
Palestinians and sraeli and the demilitarization of Jerusalem, started to be seen as a threat
among the far-right Zionist extremist groups. One of them, LEH (Freedom Fighters for srael),
decided to assassinate Bernadotte, finally achieving their objective through a terrorist attack
to its convoy on the 17th of September[18].
The question submitted to the World Court by the United Nations General Assembly
[hereinafter UNGA] was whether the O had the capacity to bring an international claim
against a non-member State, enabling in this way the Secretary-General to obtain reparation
for the injuries suffered by the agents of the same organization, or if such capacity had to be
considered to be exclusive of the National State, in this particular case of Sweden.
The Court had preliminarily to deal with the issue of the international legal personality
of the United Nations [hereinafter UN], being this last the necessary assumption for the
eventual accordance of functional immunity to the same organization. n other words the
international legal personality of an international organization appears to be the conditio sine
!ua non in order to be able to bring a claim against both member than non member States.
t has to be noted that no reference to it had been made in the constitutive act of the
organization. The proposal made in this sense by the Belgian delegation[19] was in fact
retained. The Court considered the international legal personality of the organization to be a
consequent and logical attribution deriving from the same functions and rights conferred by
the member States to the UN through the means of its' constituent instrument[20]. n
particular the Court affirmed that "to achieve these ends the attribution of international
personality "wa#s indispensable[21]. t is therefore nowadays undeniable that Os constitute
international legal persons when it appears to be the intention of its founding member
States[22]. Moreover, in conformity with the reasoning of the CJ, if the capacity to operate on
an international level is to be considered one of the main features of Os, the attribution of
international legal personality to them results as necessary. The main effect of the recognition
of such personality consists in the distinction from that of the single member States[23].
This approach was maintained by the European Court of Justice [hereinafter ECJ] in
the famous case 22/70 $ommission v. $ouncil[24] [hereinafter %&' case], having at issue
whether the European Community [hereinafter EC] "was empowered to conclude a treaty with
Switzerland on road transportation, or whether the power to conclude such agreements still
rested, in whole or in part, with the member States.[25] The Court preliminary dealt with the
issue of the international personality of the EC in order to legitimate its treaty-making power in
the fields of transportation.
n the view of a number of authors, since Os are created by other subjects of
international law, i.e. States, it is necessary to examine the constitutive instruments in order to
verify the member States' effective will to create an organization endowed with a separate
legal personality. Other authors, instead, do not consider the international convention to be a
crucial test for the assessment of the international personality of the organization. n fact, in
their opinion this last should be based on the existence of a series of criteria "met when
international organsmay assume obligations on their own[26].
The constitutive instrument may tantamount to an objective test. The CJ, always in the
eparation case, acknowledged the international legal personality of the UN not only, as
previously stated, on the existence of powers and capacities of the O, but even on a series of
relevant factors included in the UN Charter[27]. For the sake of argument, the Court deduced
such personality from the "existence of organs and tas(s) obligation for members to give
assistance to the organization in action underta(en by it and to respect decisions ta(en.
[28].
Although only few constitutive treaties recognize expressly the international legal
personality of the organization[29], it is necessary to look at their content in order to assess
whether such personality can or cannot be inferred from the rights and obligations conferred
to the organization. This prospective is moreover confirmed by the response motivation of the
non-insertion of a provision in the UN' Charter explicitly providing such organization with
international legal personality. Clear are the words of the Subcommittee V/2/A on the juridical
status of the organization: "as regards the !uestion of international juridical personality, the
Subcommittee has considered it superfluous to ma(e this the subject of a test. In effect, it will
be determined implicitly from the provisions of the $harter ta(en as a whole[30]. n
conclusion, the mere insertion of a declaratory provision of such international personality is
not sufficient per se to fund it[31]. Furthermore the same absence of a clear intention to
endow the organization with international legal personality is not by itself an obstacle if such
entity effectively exercises functions on an international level. llustrative of such assertion is
the case of the Organization for Security and Cooperation in Europe [hereinafter OCSE],
whose international legal personality is commonly accepted, which constitutes a regional
arrangement under Chapter V of the UN Charter[32], even if it was set up through a political
instrument, and that has been given the status of observer in the UNGA[33].

3,5 I(TER(%TI'(%" "EG%" -ERS'(%"IT& 'F T4E EUR'-E%(
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nteresting is the case of the European Union, which has been, before the Lisbon
Treaty, in the centre of a vast debate concerning its existence as a legal entity. n fact,
differently from the Treaty establishing the EC[34] [hereinafter TEC], in the Treaty establishing
the European Union [hereinafter TEU] a specific provision assessing the international legal
personality of the Union is not retrievable.
The question of the Union's legal personality was raised especially in connection with
international relations and the power of the Union "to conclude treaties or accede to
agreements or conventions[35]. n fact, differently from the EC, permeated with the power to
conclude and negotiate agreements, the Union did not have such institutionalised treaty-
making powers. The same treaty, on the other side, strengthened the confusion on the
personality of the Union providing a form of treaty-making power through the introduction of
former articles 24 and 38 TEU, allowing the negotiation, by the Presidency, and the
conclusion, by the Council, of agreements in the fields of common foreign and security policy,
title V, and police and judicial cooperation, title V.
This was the cause of the flourishing of contrasting positions among eminent scholars
on the existence of the Union's international legal personality. There was the assertion of: an
implicit personality[36], a presumptive personality[37], or, on the opposite, the absence of any
form of international personality, both internal and external[38].
n the determination of whether the EU was a legal entity even before the entry into
force of the Lisbon Treaty, a confrontation with the content of the eparation case appears
useful. Firstly it has to be noted that in both cases the charters of the two organizations did
not contain an express provision affirming such personality. Furthermore in the negotiation of
both treaties the insertion of such provision was proposed and in both cases denied. n fact
such view was prevailed in Maastricht by the position of those, especially France and United
Kingdom, who feared that the attribution to the Union of legal personality would either
compromise the member States' sovereignty in foreign relations or "impinge on the legal
personality of the $ommunity.[39] From this last fact part of doctrine has deduced "the
intention of the drafters.not to accept the personality of the *nion[40].
Nevertheless recalling the eparation case and following the reasoning of the CJ, this
is not sufficient per se to exclude the international legal personality of an intergovernmental
organization; on the contrary, the absence of such provision appears the rule for most of the
constitutive acts of international organizations[41].
n favour of the recognition of the international legal personality of the EU, always in
conformity with the World Court's logic, was the wording of the founding Treaty, through which
it appeared as "an institution in detachment from its members, entrusted with a capacity to act
on international level[42]. n light of such scope it must be mentioned especially article 1 of
the TEU (former art. A), which described the creation of the Union as a "new stage in the
process of creating an even closer union among the peoples of %urope, and article 2 (former
art. B), attributing the objectives of the Union "to assert its identity on the international scene,
in particular through the implementation of a common foreign and security policy[43], which
appeared to have as a logical basis the recognition of the Union as an international legal
entity.
Before arriving to the Lisbon Treaty, reference must be made to the conclusion of the
working group on legal personality, created in the context of the 2002 European Convention in
Bruxelles. n the final report of the group, headed by Giuliano Amato, was assessed " that
there was a very broad consensus +with one member against, that the *nion should in future
have its own explicit legal personality. It should be a single legal personality and should
replace the existing personalities[44].
This future has now become the present with the 2007 Lisbon Treaty[45], expressly
providing, in article 46 A, that ""&#he *nion shall have legal personality. The Conference of
the Representatives of the Governments of the member States, provided in any case to
specify in one of the declarations annexed to the Final Act that "the fact that the %uropean
*nion has a legal personality will not in any way authorize the *nion to legislate or to act
beyond the competences conferred upon it by the -ember States in the &reaties.[46] With
the Lisbon Treaty the pillar structure is abolished and the EC is merged by the EU[47], as
results from article 1(3) of the Reform Treaty TEU: "the *nion shall be founded on the present
&reaty and on the &reaty on the functioning of the %uropean *nion. &hose two treaties shall
have the same legal value. &he *nion shall replace and succeed the %$[48].
n this way the condition imposed by the British Government in order to support the
granting of legal personality to the Union were accomplished: "the .overnment would only
accept it on the basis that the distinct arrangements for the $ommon /oreign and Security
0olicy and aspects of 1ustice and 2ome 'ffairs were fully safeguarded, along with the
existing arrangements for representation in international bodies[49].
t is "only the %uropean *nion which may bear the responsibility for an internationally
wrongful act[50], especially with regard to the treaty obligations assumed by the former EC.
On the field of responsibility a brief mention must be made to article 340 (2), former article
288 (2) TEC, under which the "*nion bears non3contractual liability for damage caused by its
institutions or by its servants in the performance of their duties[51].





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There is no doubt that international responsibility constitutes an inherent consequence
of international legal personality[52]. n the words of Jan Klabbers, professor of international
law at the University of Helsinki, "somehow international legal personality is thought to be a
condition sine !ua non for the possibility of acting within a given legal situation a threshold
which has to be crossed[53]. The responsibility for any wrongful act committed by an O
endowed with international legal personality should apparently fall exclusively on the O itself;
not on its' member States. This assumption finds confirmation in the eparation case. n fact,
if the Court funded on such personality the right of the UN to "bring claims for harms done to
its interest4 ,the latter should also be held ".liable for harms that it inflicts on third
parties[54]. n other words, it should be responsible for its acts.
Nevertheless, other scholars still affirm the responsibility of member States for such
acts, due either to the non-acceptance of the independent legal personality of the O or on the
subordination of the legal effects of the O's legal personality to non-member States'
recognition[55]. Nowadays this position cannot however be accepted. This is the approach
taken by the LC in art. 2 of the Draft Articles on the responsibility of Os [hereinafter O Draft
Articles], which states that Os have their "own international legal personality.[56]

/,3 T4E C%SE 'F % #ERE %SS'CI%TI'( 'F ST%TES

t is widely accepted that in absence of such personality, for instance in the case of a
mere association of States, ".the entities do not exist in law, and accordingly cannot perform
the sort of legal acts that would be recognized by that legal system, nor even be held
responsible under international law...[57]. Special Rapporteur Giorgio Gaja, in his first report
to the LC, stated that the ".norms of international law cannot impose on an entity
obligations unless that entity has legal personality under international law[58]. Therefore in
absence of an obligation no responsibility may arise and, moreover, such obligations
inevitably should fall on the States, the only subjects of international law to be originally
endowed with such personality. This appears to be the consequence of the fact that in such
situations the organizations are not entrusted with tasks they fulfil through their own organs.
[59]
When an O does not distinguish itself from its' components and, as has been clearly
stated by professor Amerasighe, "whereit is obvious that in spite of this expressed
attribution the organization does not have independent functioning capacity or organsand
that the attribution is a subterfuge for the creating States to avoid their direct responsibilities
the attribution may legitimately be ignored by third States[60]. Nevertheless the assessment
of whether an organization must be considered a mere association of States or an entity
endowed with autonomous legal personality is a very complicated task.
The Westland affair[61] represents an excellent example of such difficulties, which rose
from the interpretation given by the nternational Court of Arbitration [hereinafter CC] of the
statute of the Arab Organization for ndustrialisation [hereinafter AO]. n particular, the articles
referring directly to the four member States were revealing of the absence of an intention by
the member States to disappear behind the AO, considering on the opposite their aim "de
parteciper 5 '6I en !ualit7 de 8membres responsables[62].
n reality, as Dominic has brilliantly noted[63], the CC should have based its decision
on two particular features of the AO. Firstly, the admission of other members was
subordinated to the agreement between the four original member States. t was not,
therefore, taken by an organ of the organization itself. Furthermore, the High Committee,
instituted by the Treaty, functioned more as a common organ to the four member States than,
once more, as an organ of the AO itself.
t is a fact that such formulas are present in approximately all constitutive instruments
of Os, even in the United Nation Charter especially in reference to articles 3 and 56.
Therefore this should not be considered a valid argument[64]. n the past years authors have
departed from such a rigid interpretation of O's responsibility, doubting and hypothesizing
member States' accountability based on the amount of control exercised in the O's decision-
making process[65]. will deal it below in the text.


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Baring in mind the general aim to grant the implementation of the obligation of Os,
different hypotheses have been made with the intent of extending such responsibility to the
member States. Doctrine is divided between those who affirm the existence of a subsidiary
responsibility, "une responsabilit7 !ui permet aux tiers !ui ont une r7clamation juridi!ue 5
l97gard d9une organisation internationale d9intenter une action contre les %tats membres en
cas de d7faillance de l9organisation et seulement dans ce cas[66], or a concurrent one, " !ui
permet aux tiers !ui ont une r7clamation juridi!ue 5 l97gard d9une organisation internationale
d9agir, : leur gr7, soit contre l9organisation, soit contre le membre[67].
Classically it has been affirmed the exclusive responsibility of Os endowed with
international legal personality for an international wrongful act. Member States cannot, from
this point of view, be held liable even if the unlawful act would have constituted an
infringement of their obligation if directly committed by them.
On the other side the idea of a concurrent responsibility of member States, even
though presently seen as an exception, is not in any case implausible. Examples of this are
the 1967 Treaty on principles governing the Activities of States in the Exploration and Use of
Outer Space including the Moon and Other Celestial Bodies and the 1972 Convention on
nternational Liability for Damage caused by Spaces Objects[68]. The same principle can
even be found in a series of "accords mixtes[69], open to the joint participation of the Os and
of the member States, such as the case of the EC and in several international instruments
founding responsibility regimes outside the case of the commission of a wrongful act[70].
Two important arbitral awards, ;estland 2elicopters <imited v. 'rab 6rganization for
Industrialization and International &in $ouncil arbitration, which focused on such topic, are a
manifestation of the absence of any clear and net jurisprudential position in favour of a
concurrent member State responsibility or an exclusive responsibility either of the
organization or of the member States[71].
The choice[72] expressed both by the LC and the nstitut de Droit nternational
[hereinafter D] in favour of the principle of the exclusion of the responsibility of member
States for the wrongful acts committed by an O, confirmed by main stream doctrine[73], has
a political character, as will be later clarified[74]. There are as well situations, despite the
prevalent position, in which member States are held responsible for acts formally committed
by Os[75].
t is therefore a matter of fact that till now a general principle of international law
regarding such a subsidiary responsibility never has emerged. Recalling the words of Lord
Kerr: "In sum, I cannot find any basis for concluding that it has been shown that there is any
rule of international law, binding upon the member States of the I&$, whereby they can be
held liable = let alone jointly and severally = in any national court to the creditors of the I&$
for the debts of the I&$ resulting from contracts concluded by the I&$ in its own name[76].
There are cases, nevertheless, in which such subsidiary responsibility of the member States
exists, but only as a consequence of the existence of a specific legal norm[77].

3,3 C'(TR'8ERSI%" "EG%" -R%CTICE

For the investigation over the possible existence of a responsibility of the member
States for an internationally wrongful act formally attributed to the O to which they are
members, the work of Giorgio Gaja for the LC is central. n particular in the second
addendum to the fourth report to the LC he analyzed two important cases[78]: the ;estland
2elicopters <td. v. the 'rab 6rganization for Industrialization and the /our States -embers of
that 6rganization and two cases treated jointly in front of the Court of Appeals of England on
the esponsibility of -ember States originated in the /ailure of the International &in $ouncil
"hereinafter I&$# to /ulfil its 6bligations under Several $ontracts.

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Object of the ;estland 2elicopters <td. v. the 'rab 6rganization for Industrialization
and the four States members of that organization (Egypt, Qatar, Saudi Arabia and the United
Arab Emirates) [hereinafter ;estland 2elicopter case] was the request based on an
arbitration clause in a contract that had been concluded between the company and the AO.
The Court faced two main issues: the competence of the tribunal in relation to the case and
the liability of the four member States for the acts of the organization.
n its reasoning the Arbitral Tribunal did not apply a well known theory, originated in
Roman times: "Si !uid universitati debetur, singulis non debetur, nec !uod debet universitas
singuli debent[79]. This last excludes the cumulative liability of a legal person, an O and of
the individuals which constitute it. This motive was based on the assertion that "the
designation of an organization as 8legal person9 and the attribution of an independent
existence do not provide any basis for a conclusion as to whether or not those who compose
it are bound by obligations underta(en by it [80]. The Court submitted that, based on the
general principles of law and on the principle of good faith, "in default by the four States of
formal exclusion of their liability, third parties which have contracted with the '6I could
legitimately count on their liability[81]. Moreover, the Court assessed that the four States did
not want to vanish behind the organization, au contraire, there was a clear identification of the
States with the AO, as results from the composition of its High Committee. This last, which
not only approved the Basic Statute, but even set up the provisional directorate and directed
its' general policy with "dominating authority[82], was composed by the competent Ministers
of the Four member States and from article 56 of the Statute, which disposes that "in case of
disagreement within the $ommittee, reference should be made to the >ings, 0rinces and
0residents of the States[83].
The Court then affirmed that the member States were actually bound by the arbitration
clause concluded by the AO, as much as they were bound by the obligations contracted by
the organization, "since the obligations under substantive law cannot be dissociated from
those which exist on the procedural level[84]. The Court based such considerations even on
the concept of equity assessed in a famous case in front of the CJ: ""%#!uity, in common with
the principles of international law, allows the corporate veil to be lifted, in order to protect third
parties against an abuse which would be to their detriment [85].
The Court of Justice of Geneva set aside the arbitral award by request and in relation
only to Egypt; firstly as it found the arbitral tribunal incompetent[86]. Moreover the Court
dissented from "the conclusion of the 'rbitral &ribunal that the '6I "was# in some way a
general partnership +soci7t7 en nom collectif, which the four States did not intend to hide
behind but agreed to ta(e part in as 8members with liability9 +membres responsables,.[87],
without giving legal grounds on why it considered the "'6I a legal entity under international
law and then assimilating it to a corporation under private law, recognized by national
legislations and subject to the rules of these legislations[88].
The Federal Supreme Court of Switzerland, subsequently to the unsuccessful
Westland Helicopters' appeal, confirmed that the clause did not bind Egypt. n fact, nor the
predominant role of the member States, nor the fact that the supreme authority of the AO
was composed of ministers, actually undermined the independence and personality of the
Organization. Moreover, according to the Supreme Court, nothing could have lead to the
conclusion that when organs of the AO dealt with third parties they consequently even
bounded the founding member States[89].
Lastly there was a new arbitration panel which considered the issue of the liability of
AO and of the three member States which had not challenged the interim award. n this
judgment the Court stressed out that the member State's responsibility could be "assessed
only on the basis of the acts constituting the joint organization when construed also in
accordance with the behaviour of the founder States[90]. The Court found that the member
States did not have nor manifest the intention to exclude their liability and the legitimate
expectation of the third contracting parties. n any case the final award was given only against
the AO, but its' text hasn't yet been published[91].

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Different were the cases treated by the English High Court relatively to the
responsibility of the member States originated in the failure of the nternational Tin Council. n
relation to our first case, 1.2. ayner +-incing <ane, <td. v. ?epartment of &rade and Industry
and 6thers, in which the plaintiffs sued the United Kingdom Department of Trade and
ndustry, 22 foreign States and the European Economic Community, central results the
reasoning of judge Staughton.
The honourable judge, in light of international law principles, assessed the existence of
a general principle of international law by which the international legal personality of an O
was not per se inconsistent with the liability of its member States. This was due to the fact
that "both in the domestic law of some countries and in public international law, the fact that
an association is a legal person is not inconsistent with its members being liable to creditors
for its obligations[92]. Furthermore judge Staughton ascertained the absence of a principle
affirming the liability of member States for O's obligations vis--vis third parties[93].
n reference to national English law he noted the absence, once more, of a principle
disposing the non liability of the member States. Judge Millett, in the -aclaine ;atson @ $o.
<td. v. ?epartment of &rade and Industry case, shared the same approach[94].
The two cases were decided jointly by the Court of Appeal. Lord Kerr, who had one of
the majority opinions, affirmed the absence both of a clear position in international law and of
a settled jurisprudence on the liability of the member States. On the regard only the personal
opinions of a part of doctrine could be retrieved. Therefore, he assessed the impossibility to
conclude in favour of the existence of "any rule of international law, binding upon the member
States of the I&$, whereby they can be held liablefor the debts of the I&$ resulting from
contracts concluded by the I&$ in its own name[95]. The judge affirmed the absence even in
municipal law of norms under which the assumption of obligations by the member States
could be made.
n Lord Ralph Gibson's opinion, going further on, the liability of the member States was
excluded as well. Such exclusion was a consequence of the separate legal personality of the
O, which had only one exception: when secondary liability of the latter can be assumed from
the constitutive document of the entity and from the deficiency of any State practice in the
direction of an acknowledgment of the direct liability of any State, due to the absence of an
exclusion clause[96].
More interesting and innovative appears to be the dissenting opinion of Lord Nourse,
which gave decisive importance to the attitude taken by the member States, in other words
their clear intention to be held liable for TA6's obligations[97]. The judge contrasted the
opinion of the other colleagues, sustaining the irrelevance of TC's separate legal personality
in regards of the joint member States' liability for the debts in England. On the relevance of
the conduct of a member State suitable to make a third State rely on its liability we will return,
in this same chapter, later on[98].
Nevertheless the House of Lords confirmed the majority opinions of the Court of
Appeal, relatively firstly to the lack of evidence on the existence of the alleged rule of
international law imposing on "States members of an I6, joint and several liability for the
default of the organization in the payment of its debts unless the treaty which establishes the
I6 clearly disclaims any liability on the part of the members[99]. The Court, through the
recalled words of Lord Templeman, as well affirmed that even if this international rule existed
it could nevertheless be enforced only under ternational law[100].
A few months later, the view that member States could not be held responsible,
because of their part in the internal decision-making process of the organization, was
maintained by Advocate-General Darmon in his opinion in the case -aclaine ;atson @ $o.
<td v. $ouncil and $ommission of the %uropean $ommunities[101].




3,/ T4E '-I(I'( 'F ST%TES

The special rapporteur as well analyzed the Canadian Government's claims in relation
to the injuries caused by the crash of a Canadian helicopter, in 1989, while it was operating in
Sinai for an organization established by Egypt and srael, the Multilateral Forces and
Observers. n such occasion, the argument of the liability of the member States of an O was
incidentally touched, giving some support to the claim against the two member States rather
than on the organization. [102]
Gaja reported as well the opinions of various States on the question of the
responsibility of member States in connection with the current study of the Commission. n
particular the German Government "advocated the principle of separate responsibility before
the %uropean $ommission of 2uman ights +-. @ $o.,, the %uropean $ourt of 2uman ights
+Senator <ines, and I$1 +<egality of *se of /orce, and "had# rejected responsibility by reason
of membership for measures ta(en by the %$, N'&6 and the *N[103]. Other delegations
expressed on the point a different position sustaining that, even though in principle member
States are not responsible, they can incur responsibility in "certain exceptional
circumstances[104], as in the cases of "negligent supervision of organizations[105] or
"particularly with regard to I6s with limited resources and a small membership, where each
member State had a high level of control over the organization9s activity[106].
Concluding, the special rapporteur reported the position of the nternational Criminal
Police Organization (nterpol) on the responsibility of a State for internationally wrongful acts
of an O, affirming that it may exist only if prescribed by the constituent instrument or other
rule of the O, as lex specialis, of which it is a member[107].

3,5 FR%CTURE I( T4E D'CTRI(E

As already anticipated, scholars have held different opinions on the point. Along with
those who tout court do not recognize international organizations as endowed with
international legal personality, therefore assessing the exclusive responsibility of the member
States[108], other opinions are present and need to be enlightened.
A first category comprises those who consider the member States responsible when
the organization fails to comply with its obligation to make reparation for an internationally
wrongful act[109].
n opposition to such opinion other authors affirm that member States do not incur in
any subsidiary responsibility, given the separate legal personality of the organization[110].
The latter opinion, assessing the absence of a general principle imposing a subsidiary
responsibility on the member States of an organization due only to their membership, finds
support also in article 6 (a) of the 1995 Resolution of the D[111]. According to such article,
"save as specified in article A, there is no general rule of international law
whereby States members are, due solely to their membership, liable,
concurrently or subsidiarily, for the obligations of an I6 of which they are
members.
t is as well convenient to recall the full text of Article 5 in order to give the necessary
elements for the full understanding of its scope of application:
"+a, &he !uestion of the liability of the members of an international
organization for its obligations is determined by reference to the ules of
the organization.
+b, In particular circumstances, members of an I6 may be liable for its
obligations in accordance with a relevant general principle of law, such
as ac!uiescence or the abuse of rights.
+c, In addition, a member State may incur liability to a third party +i,
through underta(ings by the State, or +ii, if the I6 has acted as the agent
of the State, in law or in fact.

3,: 4&-'T4ESI*ED E7CE-TI'(S 'F % SU$SIDI%R&
RES-'(SI$I"IT&

Even if the exclusion of the responsibility of the member States for internationally
wrongful acts of Os is seen from the majority of scholars as the imperative, there are,
nevertheless, two exceptional cases in which a subsidiary responsibility of the member States
has been hypothesized. Moreover the possibility of derogating such general rule in "certain
exceptional circumstances[112] is corroborated by the position taken by various States in the
drafting of the articles on the responsibility of international organizations[113].
Before the analysis of the two hypothesis, it has to be noted that their application does
not necessarily imply the responsibility of all the member States of the O, ie. "should
acceptance of subsidiary responsibility have been made only by certain member States,
responsibility could be held to exist only for those States[114].
Moreover, the determination of the responsibility results particularly controversial when
it arises as a consequence of a decision taken by one of the organs of the O. n such case
"the fact that the decision in !uestion was ta(en with the votes of some member States only
does not imply that only those States would incur responsibility[115].
Attention must be paid in the adoption, as a solution, of the criterion of the distinction
between States that vote in favour, against the decision or that abstain from voting, due to the
potential negative effects on the decision-making process of the O. The risk to incur in
responsibility could determine a precautionary abstention or negative vote of the member
States, impeding in such way the reaching of consensus.

3,:,3 %CCE-T%(CE 'F T4E RES-'(SI$I"IT&

The first case in which the States are held to be exceptionally responsible results
tautological: when they accept to be responsible. n fact, even among the authors which
support the absence of a member State responsibility due to the separate legal personality of
the O, some accept that responsibility can nevertheless be present in exceptional cases,
especially "when member States accept that they could be held responsible for an
internationally wrongful act of the organization[116]. The necessity of such intention of the
member State appears central in the thoughts of M. Herdegen. n his dissertation,
membership by itself is not sufficient, without the presence of a clear intention of the member
State, for an extension of the liabilities and the sharing of the organization's obligations and
rights[117]. As was brilliantly noticed by Giorgio Gaja "acceptance generally implies only a
subsidiary responsibility in the event that the organization fails to comply with its obligations
towards a non3member State[118].
t is important now to focus on the moyen through which such acceptance may, or has,
to be expressed. Central for the purpose is, once more, the role given to the constitutive act of
the O. The acceptance of the responsibility can be referred to the constituent document.
Clear on the point is Lord Ralph Gibson: ";here the contract has been made by the
organization as a separate legal personality, then, in my view, international law would not
impose such liability upon the members, simply by reason of their membership, unless upon
a proper construction of the constituent document, by reference to terms express or implied,
that direct secondary liability has been assumed by the members[119].
The special rapporteur Giorgio Gaja, moreover, has affirmed that even if acceptance
can also be expressed through instruments other than the constituent act "however.
member States would incur responsibility in international law only if their acceptance of
responsibility produced legal effects in their relations with the injured non3member
State[120]. n any case it has to be stressed that, being the constitutive instrument not
binding in the relations between the member and non-member States, such legal effects are
more likely to be produced through a provision of a treaty that conferrers rights on third
States, rather than "simply on the basis of the constituent instrument[121].
n order to detect such acceptance, part of doctrine makes general reference to the
relevant provisions and circumstances, which should all be taken in account[122]. n relation
to international companies it has been held that ""a#ll relevant provisions and circumstances
must be studied to ascertain what was intended by the parties in this respect and the extent
to which their intention was made (nown to third parties dealing with the enterprise[123].

3,:,/ C'(DUCT 'F T4E #E#$ER ST%TE

The retrieval of the elements which fund the subsidiary responsibility of the member
States in relation to their conduct results immediately to be more tortuous. Nevertheless, the
two of them are headed towards a similar solution. The LC located such situation "when
member States, by their conduct, cause a non3member State to rely, in its dealings with the
organization, on the subsidiary responsibility of the member States of that organization[124].
Also Philip Klein considers the conduct of the member States to be relevant in order to involve
their guarantee towards the other contracting parties for the obligations rising on the
organization[125].
Attention must be paid as well to the position of Professor Amerasinghe. This eminent
scholar suggested, more on political than on juridical grounds, that "the presumption of non3
liability could be displaced by evidence that members +some or all of them, or the
organization with the approval of members gave creditors reason to assume that members
+some or all of them, would accept concurrent or secondary liability, even without an express
or implied intention to that effect in the constituent instrument[126], in this way recalling the
value of the general principle of good faith.
On the reliance on the subsidiary responsibility of member States, a statement made in
the arbitral award in the ;estland 2elicopters case appears relevant. The tribunal referred to
the "trust of third parties contracting with the organization as to its ability to cope with its
commitments because of the constant support of the member States[127]. t is therefore
necessary to detect the various factors which could be relevant in order to determine whether
a non-member State had a legitimate motive to rely on the member States' subsidiary
responsibility, i.e. "international organizations with limited resources and a small membership,
where each member State had a high level of control over the organization9s activity, as was
stated by Belarus[128]. n any case the member States' responsibility is not per se inferable
from the mere presence of those factors.

3,:,5 -'"IC& RE%S'(S

The acceptance of the general exclusion of States' responsibility for the international
wrongful acts of the Os to which they are members relies on two main policy reasons,
excellently summarized by Giorgio Gaja.
Firstly, the "relations of I6s with non3member States would be negatively affected,
because they would find difficulties in acting autonomously[129].
The second motivation, closely connected to the first one, regards the potential
consequence that subsidiary responsibility of the member States could have on their
behaviour: "if members (now that they are potentially liable for contractual damages or
tortuous harm caused by the acts of an I6, they will necessarily intervene in virtually all
decision3ma(ing by I6s[130].
The two suggested exceptions, by creating a causal link between the responsibility of
the member States and their conduct, also rest on policy considerations. n fact, once a
member State has accepted its responsibility or has led a non-member State to rely on it, it
appears just and fair that such State should face the consequences of its own conduct.

3,:,: %RTIC"E ;3 'F T4E DR%FT %RTIC"ES '( T4E RES-'(SI$I"IT& 'F
I(TER(%TI'(%" 'RG%(I*%TI'(S

The LC in the O Draft Articles analysed a series of residual hypothesis of State
responsibility in connection with acts committed within the O. n particular, proposed article
61, titled "esponsibility of a State member of an international organization for the
internationally wrongful act of that organization, in its last drafting of 2009[131], dealt with the
two exceptions previously seen:
'rticle BC
C. ;ithout prejudice to articles AD to BE, a State member of an
international organization is responsible for an internationally wrongful
act of that organization ifF
+a, It has accepted responsibility for that act) or
+b, It has led the injured party to rely on its responsibility.
G. &he international responsibility of a State which is entailed in
accordance with paragraph C is presumed to be subsidiary.
The analysis of the text, based on the Commentary, of the article, appears more than
useful, since it does not have an equivalent in the draft articles of State responsibility. Firstly it
has to be noted that, through the reference done in the saving clause to article 57 and 60, it is
unequivocally bared in mind that the member States of an O may in any case be held
responsible in accordance with the previous draft articles. Like for the other articles, article 61
does not contain a negative rule referring to those cases in which the responsibility of the
member State does not arise in connection to the act of an O. This nevertheless does not
constitute an impediment from deriving such rules a contrario through the interpretation of the
text.
Lastly, in light of the narrow field of application of the two exceptions, "it is reasonable
to presume that, when member States accept responsibility, only subsidiary responsibility,
which has a supplementary character, is intended[132].


SECTI'( II

/ RU"ES '( T4E RES-'(SI$I"IT& 'F I(TER(%TI'(%"
'RG%(I*%TI'(S

The LC has concentrated the last years, precisely from 2002, in elaborating, through a
codification process, a series of Draft Articles on the Responsibility of Os[133]. Even if
probably the O Draft Articles will not be formally adopted in a treaty, nevertheless their
implementation, as for the Articles on State Responsibility [hereinafter ASR], as a soft law
instrument adopted by the UNGA, will still be an important achievement for evolution and
clarification of such field.
The work of the LC has an incredibly broad ambit, as results from article 1, in its last
drafting:
"C. &he present draft articles apply to the international responsibility of an
international organization for an act that is wrongful under international
law.
G. &he present draft articles also apply to the international responsibility
of a State for the internationally wrongful act of an international
organization.[134]
t is clear that these articles apply not only to intergovernmental organizations, but to all
international organizations. As already assessed in the ntroduction, the term
"intergovernmental organization, does not limit the field of application of the O Draft Articles.
Furthermore this expression results to be inappropriate in a series of cases, such as the ones
when State organs other than governments have established the O, or when among the
members of the organization are non-State entities[135].
Moreover, always for the sake of the application of such articles, it is irrelevant both the
instrument used in establishing the O, whether "a treaty or other instrument governed by
international law[136], than the presence upon the O's members of non-State parties[137].
Furthermore, the articles intend to sanction every unlawful act independently from the form of
its manifestation, both actions than omissions, as clearly stated in article 4.
n reality even the title chosen by the Commission appears to be misleading,
apparently restricting the issues being treated. n fact as we will later see[138], among all of
the articles, some are dedicated to "the responsibility of States in connection with acts that
they commit within the I69s[139], namely articles 57 to 62[140], material that should have
fallen in the ASR[141].

/,3 T4E RIS< 'F %(%"'G&

n the drafting process, nuisances have arisen in reference to the limits and, in general,
the applicability of the rules of State responsibility to Os. t is out of any doubt that, having
personified Os different features and characteristics from the ones of States, a mirror
extension of the rules on the responsibility of States to Os is implausible.
Nevertheless these differences on the other hand, do not by themselves legitimate the
nternational Community to ignore situations of control over the O by the member States,
especially if seen from the perspective "of the collective conduct underlying the wrongful
act[142]. n fact, if on the one hand an extension of a number of concepts related to State
responsibility, such as the one of coercion, appears admissible, on the other, the creation of
new exceptions to the principle of the exclusive responsibility of Os, such as the exercise by
member States of an overwhelming control over the decision-making process of the
organization[143], appears necessary.

/,3,3 C'#-%RIS'( $ET)EE( T4E %RTIC"ES '( ST%TE RES-'(SI$I"IT& %(D
T4E %RTIC"ES '( T4E RES-'(SI$I"IT& 'F I(TER(%TI'(%"
'RG%(I*%TI'(S

n the O Draft Articles, few are the exceptions in which no clear counterparts to the
ASR can be sought; i.e. basically articles 1-3, 16-17, 39, 51, 60-61.
Moving on to the analysis of some of the most important articles:

%= elements o. an internationall! >rong.ul act

Firstly it can be easily noticed the equivalence between article 2 of the ASR and article
4 of the O Draft Articles, dealing with the two elements of an internationally wrongful act:
"&here is an internationally wrongful act of an international organization
when conduct consisting of an action or omissionF
+a, Is attributable to the international organization under international
law) and
+b, $onstitutes a breach of an international obligation of that international
organization.
Even article 2 of the ASR individuates both the attribution element than the breach of
an obligation under international law as necessary elements for an internationally wrongful act
to occur. Such breach, in reference to Os, as splendidly summarized by the CJ, may regard
all "obligations incumbent upon them under general rules of international law, under their
constitutions or under international agreements to which they are parties[144]. n the
commentary to art.4 of the O Draft Articles, another analogy with the ASR is underlined: the
irrelevance of damage as an element of O's international responsibility.

$= %ttri?ution o. conduct

Another important parallelism between the ASR and the O Draft Articles, involving a
series of articles, regards the attribution of conduct. To its discipline are dedicated, in both
codifications, chapters . The same commentary to the most recent version of the O Draft
article, in posing once more such analogousness, reminds nevertheless the difference
existing between attribution of conduct and attribution of responsibility.
Moreover it is not possible to exclude, a priori a "multiple attribution of conduct[145] or,
in other words, the possibility for the same conduct to be attributed both to the State than to
the O or even simultaneously to two or more Os, i.e. "for instance when they establish a joint
organ and act through that organ[146].
Another feature common to the two drafts is the provision only of positive criteria of
attribution. On the question of attribution of the conduct of organs put under the disposal of
the organization we will return later on[147], with special reference to the possibility to
attribute the conduct of military forces of States or Os to the UN in the context of peace-
keeping operations[148].
Two articles present in the ASR, nevertheless are not found in the O Draft Articles, art.
9, titled "conduct carried out in the absence or default of the official authorities, and art. 10,
titled "conduct of an insurrectional or other movement. These hypotheses, in fact,
presuppose an element which is absent nearly in all international organizations: the exercise
of control over the territory by the entity to which the conduct is attributed. n the few cases of,
nevertheless, Os administering territories, nothing opposes to an analogical application of the
pertinent rule applicable to States, as theorized by the same LC[149].

C= $reac+ o. an international o?ligation

The second element necessary for an internationally wrongful act of an O to arise is
that the same conduct, attributed to the O, "constitutes a breach of an international obligation
of that organization[150]. Even in this case, the definition given by article 9 of the O Draft
Articles on the existence of such breach fully reflects, in the first paragraph, article 12 of the
ASR.
n reference to the sources, such obligations, as written in the commentary to article 12
of the ASR, "may be established by a customary rule of international law, by a treaty or by a
general principle applicable within the international legal order[151]. n fact the expression
"regardless of its origins, used both in article 12 of the ASR, than in article 9 of the O Draft
Articles, "refers to all possible sources of international obligations, that is to say, to all
processes for creating legal obligations recognized by international law[152]. Nevertheless in
paragraph two of article 9 it is specified that ""0#aragraph C includes the breach of an
international obligation that may arise under the rules of the organization[153]. epetita
iuvant, such rules include "the constituent instruments, decisions, resolutions and other acts
of the organization adopted in accordance with those instruments, and established practice of
the organization[154].
The intent of paragraph two is to dispel any doubt that may arise in considering the
obligations arising from the rules of the organizations covered by the present article, as much
as the ones arising from the constitutive instruments or binding acts based on these last.
There has been, in fact, a question raised: whether such obligations should be
considered international obligations. The legal nature of such rule, as demonstrated by
opposing doctrinal views, is controversial. Along with those who consider "the rules of treaty3
based organizations "are# part of international law[155], other authors have denied the
internationality of such norms once the organization has come to life[156].
nteresting is the new view, which finds support both in practice and in the opinions
shared by several members of the Commission: "that international organizations that have a
high degree of integration are a special case[157]. Such is, as an example, the case of the
EC. mportant on this regard are the words spent by the ECJ in a famous case:
"Hy contrast with ordinary treaties, the %%$ &reaty has created its own
legal system which became an integral part of the legal systems of the
member States and which their courts are bound to apply. Hy creating a
$ommunity of unlimited duration, having its own institutions, its own
personality, its own legal capacity and capacity of representation on the
international plane and, more particularly, real powers stemming from a
limitation of sovereignty or a transfer of powers from the States to the
$ommunity, the member States have limited their sovereign rights, albeit
within limited fields, and have thus created a body of law which binds
both their nationals and themselves.[158]
A distinction may be drawn on the basis of sources and subject matter, among the
rules of the organization which are of international character, i.e. administrative regulations.

D= Circumstances precluding >rong.ulness

Chapter V of the O Draft Articles proposes the extensive application of the
"circumstances precluding wrongfulness on the internationally wrongful act, contained in
articles 20 to 27 or the ASR. No time is given to analyse each and every article. Nevertheless
it is of extreme importance to stress the intention of the drafters. n absence of relevant O
practice, the latter was "not to imply that there should be a presumption that the conditions
under which an organization may invo(e a certain circumstance precluding wrongfulness are
the same as those applicable to States[159]. On the contrary, even if some of the
circumstances "are unli(ely to occur in relation to some, or even most, international
organizations[160], nothing should nevertheless exclude their relevance also for Os in
analogous situations.
E= Content o. t+e responsi?ilit!

dentical are even Part Three of the O Draft Articles and Part Two of the ASR, dealing
with the content of international responsibility. n particular, matching are: the articles on the
general principles, 27-32 of the O Draft Articles and 28-33 of the ASR; those on eparation
for injury, 33-9 of the O Draft Articles and 34-9 of the ASR, with the only exception of article
39 of the first, and those on the "serious breaches under peremptory norms of general
international law, 40-1 of both drafts.
Having no time to dedicate on the single articles, interesting in any case is a rushed
view to article 39, which states:
"&he members of a responsible international organization are re!uired to
ta(e, in accordance with the rules of the organization, all appropriate
measures in order to provide the organization with the means for
effectively fulfilling its obligations under this chapter.4
Such article "does not envisage any further instance in which States and international
organizations would be held internationally responsible for the act of the organization of which
they are members[161], a part from what stated in articles 17, 60 and 61. The intent of such
article, confirmed by the views expressed by various delegations and by practice both of
States than of Os, is to deny the existence of a subsidiary responsibility of the member
States of an O towards a third injured party on the basis of the impossibility of the
responsible O to make reparation[162]. The only doubt that remains, which finds expression
in the words of the Argentinean and Belarusian delegation, regards the possibility to derogate
to such principle in specific cases, on the basis of particular features of the organization and
of its rules, or on considerations of justice and equity[163]; i.e. "where the wor( of the
organization was connected with the exploitation of dangerous resources[164] .
F= Implementation o. t+e international responsi?ilit!

Equality clearly comes into sight even when confronting part Four of the O Draft
Articles and Part Three of the ASR, both in the first chapter, from articles 42 to 49 of the O
Draft Articles and 42 to 48 of the ASR, related to the "invocation of the responsibility, than to
the second, articles 50 to 56 of the O Draft Articles and 49 to 58 of the ASR, related to
"countermeasures. Only two articles, in the present case, do not find counterpart in the ASR,
more precisely article 49, on the scope of the Part, and article 51, on the "countermeasures
by members of an international organization.

G= "e@ Specialis

Finally, special mention must be made to article 63 of the O Draft Articles, which
introduces a "lex specialis:
""&#hese articles do not apply where and to the extent that the conditions
for the existence of an internationally wrongful act or the content or
implementation of the international responsibility of an international
organization, or a State for an internationally wrongful act of an
international organization, are governed by special rules of international
law, including rules of the organization applicable to the relations
between the international organization and its members[165].
Clear is the article in hypothesizing the replacement of the general rules on
international responsibility with special ones, concerning, as an example, "the relations that
certain categories of international organizations or one specific international organization
have with some or all States or other international organizations[166] or cases of State
responsibility in connection with the acts of the O, addressed in part V of the same O Draft
Articles.
On the other side it is impossible to identify a priori such special rules and their scope
of application. On the point, interesting are the words of the Commission relatively to the
attribution to the EU of the conduct of its member State, which affirms that such special rule
could apply to "other potentially similar organizations[167]. Furthermore, the relevance given
to the rules of the organization, in particular of the EU, "encapsulates the idea that the rules
itself are a direct expression of the specificity of the *nion as a regional economic integration
organization[168]
n conclusion it is interesting to notice the specific reference, added at the end of art.
63, to the rules of the organization, which are likely to gain significant importance in regards to
international responsibility in the relations with its members. Such rules may govern partially
various aspects of the present Draft Articles, in 'particular in relation to breaches of
international law committed by an O injuring its member State or international
organization[169].
Being this not the central topic, nevertheless time advises us to move on to the next
issue.


/,3,3 -R'$"E#%TIC FE%TURES 'F T4E DR%FT %RTIC"ES '( ST%TE
RES-'(SI$I"IT&

A copy-paste operation from the ASR to the O Draft Articles on O responsibility, ".
who replicate in structure and often in wording, the earlier provisions for States, sometimes
merely replacing the word 8State9 for 8I69[170], as results from the latest version of the latter
faces, de facto, different inconveniences.
J.E. Alvarez, in particular, has been the artifex of a deeper study of such issue[171],
detecting five mayor ones:
"C. <ac( of evident State practice.
"G. <ac( of clarity as to status of an I69s internal rules or procedures.
"I. &he assumption that all I69s are e!ual and subject to the same
general rules of responsibility.
"J. &he assumption that I6s are presumptively responsible for their acts.
"A. &he assumption that States are presumptively responsible for their I6
acts.4
No more will be said in relation to the first issue, being the lack of State practice self-
evident[172], and on the last two.
n reference to the second problem, Alvarez stressed the LC's failure to address with
clarity the status and significance of O's internal rules or procedures. The LC, in article 31,
"Irrelevance of the rules of the organizationA did face such issue, posing a wording very
similar to the one adopted in article 32 of the ASR:
C. &he responsible international organization may not rely on its rules as
justification for failure to comply with its obligations under this 0art.
G. 0aragraph C is without prejudice to the applicability of the rules of an
international organization in respect of the responsibility of the
organization towards its member States and organizations.
Notwithstanding the replacement of the term "State with "I6 and of the reference to
internal law of the State with the rules of the O, little has changed in regards to the ASR. t
must be noted that "in the relations between the I6 and a non3member State or I6, it seems
clear that the rule of the former organization cannot 'per se' affect the obligations that arise as
a conse!uence of an internationally wrongful act[173].
The rules of the organization may, therefore, residually affect the application of the
rules set out in Part Two of the Draft Articles between the O and its member States and,
under Part Three, the responsibility for an unlawful act of the O towards its member States,
with the exception of the violation of peremptory norms, as their breach affects the
international community as a whole[174].
A similar approach, moreover, is traceable in article 27 paragraph 2 of the 1986 Vienna
Convention on the Law of Treaties between States and Os and between Os ""a#n I6 party to
a treaty may not invo(e the rules of the organization as justification for its failure to perform
the treaty.
n relation to the third issue the author pointed out the wrongful presumption of a
sufficient level of similarity, if not of juridical equality, among Os, "again because of the
reliance on the misleading State analogy[175]. Such presumption is linked to a second one:
that all relationships between Os' institutions and member States is the same. On this point it
has to be agreed that no equality may exist between member-driven organizations. n fact,
their actions find legitimation on the unanimous consensus of their members and other
organizations. Examples of the latter are the nternational Monetary Fund and the World
Bank, that are essentially trustees for members' funds; i.e. "a memberKs !uota in the I-/=in
addition to providing the primary source of financing of the I-/=determines its capital
subscription, its voting power, its allocations of S?s, and also forms the basis for decisions
on its access to I-/ financing[176].
The same international organizations have, in more than one occasion pointed out the
necessity of distinguishing the different types of organizations is relation to the applicable
responsibility regime[177]. For the latter the classical principal-agent theory does not seem to
be applicable[178].
Furthermore, CJ's functionally based conception of Os' legal personality, which
requires to keep into consideration the different Os mandates, structures and powers, doesn't
appear to be respected. On the contrary, it is in contrast with a series of O Draft Articles,
specifically articles 20 to 24, which attribute indifferently to all Os the same rights to invoke
self-defence, countermeasures, force majeure, distress and necessity. For the sake of clarity
once again it must be submitted that "the legal personhood of I6s is, unli(e with respect to
States, contextual[179].
Alvarez, as well, identified other 5 reasons, this time relating to the success of the
ASR[180]:
1) the ASR are secondary rules built atop primary rules of obligation widely emerged
from State practice;
2) the ASR are a codification of what actually exists;
3) the ASR secondary rules are grounded in the Vienna Convention on the Law of
Treaties;
4) the ASR could rely on the principle of sovereign equality, from which was inferable
their "same general capacities and duties vis353vis one another;
5) the ASR was generally consistent with the will of the great number of States.
For the above mentioned problems the work of the LC appears on one side
premature. How can it be possible to delineate secondary rules on O responsibility, given the
scarcity State practice, the paucity of jurisprudence and the rareness "of real world practice
demonstrating the existence of primary rules for entities that cannot, for example, be parties
themselves even to human rights conventions[181]?







/,/ RES-'(SI$I"IT& 'F #E#$ER ST%TES %RISI(G 'UT 'F
T4E EST%$"IS4#E(T 'F %( I' BT4E %$USE 'F "EG%"
-ERS'(%"IT& %T T4E "E8E" 'F ITS CRE%TI'(C

/,/,3 T4E I"C %(D T4E IDI

The LC, in its work, focused on a particular moment in which member State
responsibility may arise: the establishment of the O. The Commission gave a narrow
definition of such phenomenon, adding another condition: "the circumvention of international
obligations by member States in the establishment of an I6[182]. From the text of draft article
art. 28, in the 2006 version, results in fact a member State responsibility for the abuse of legal
personality at the level of its creation;
"' State member of an I6 incurs international responsibility if it
circumvents one of its international obligations by providing the
organization with competence in relation to that obligation, and the
organization commits an act that, if committed by that State, would have
constituted a breach of that obligation.
n other words the present article dealt with the case of a State circumventing its' own
obligations through the separate legal personality of an O of which it was member. This type
of responsibility did not require any specific intention, therefore could not be avoided simply
by showing the absence of an intention to circumvent the international obligation, as was
made clear by the same Article 28,2, which ".applies whether or not the act in !uestion is
internationally wrongful.
As results from the commentary to the present article, through the use of the word
circumvention were embraced not only cases ".in which a member State may be said to be
abusing its rights., but even cases in which they ".have provided competence to an I6
and have failed to ensure compliance with their obligations.
n relation to the first hypothesis a comparison can be made with article 5 (b) of the
1995 Lisbon Resolution of the D, where is affirmed that "in particular circumstances,
members of an I6 may be liable for its obligations in accordance with a relevant general
principle of law, such as "# the abuse of rights[183].
A part from the work of various scholars[184], in reference to the second case,
paradigmatic is the jurisprudence of the European Court of Human Rights [hereinafter
ECtHR], which has provided a few examples of responsibility of States in cases in which they
had attributed competence to an O in particular fields. The attribution of responsibility to the
member States derived here from the failure to ensure the compliance with the obligations
under the European Convention of Human Rights [hereinafter ECHR][185].

/,/,/ ECt4R C%SES

)aite and <enned! v, German!=

Useful for a full comprehension are the words of the ECtHR in one of its leading cases,
;aite and >ennedy v. .ermany[186]. n the present case, the issue in front of the Court was
whether the recognition of immunity by Germany to the European Space Agency [hereinafter
ESA], of which it was member, unduly impaired the right to access to justice in relation to
employment claims.
Waite and Kennedy were German employers of foreign companies put at the disposal
of a ESA centre in Darmstadt. As their contracts were not renewed, the employer decided to
bring their claim against the ESA before the German Labour Court, arguing that they had
acquired, in conformity with German Law, the status of employees. The Labour Court
declared, nevertheless, their actions inadmissible, as section 20 (2) of the Courts Act provided
immunity from jurisdiction when accorded by international agreements, as in the present
case[187]. For the same reason the following appeal was rejected by the Federal
Constitutional Court.
The applicants subsequently applied to the ECTHR, contending that Germany's
recognition of ESA's immunity, unduly obstacled the exercise of their right, alleging the
violation of article 6.1 of the ECHR.
The ECtHR reiterated the principle that Article 6(1) embodies the "right to a court, of
which the right of access, that is, the right to institute proceedings before courts in civil
matters, constitutes one aspect only[188].
Secondly, the Court concentrated on the immunity issue, agreeing with the reasoning
of the German labour courts and finding no arbitrariness in their judgements, which effect to
such immunity. Moreover the ECtHR found that the immunity granted by Germany to the ESA
had a legitimate objective, being essential for the scope of ensuring the autonomous and
proper functioning to the latter, freeing it from potential unilateral interferences by national
governments.
Relatively to the issue of proportionality, the Court said that :
"";#here States establish international organizations in order to pursue
or strengthen their cooperation in certain fields of activities, and where
they attribute to these organizations certain competences and accord
them immunities, there may be implications as to protection of
fundamental rights. It would be incompatible with the purpose and object
of the $onvention, however, if the $ontracting States were thereby
absolved from their responsibility under the $onvention in relation to the
field of activity covered by such attribution.[189]
n opinion of the Court central was the proof of a material factor: the availability, for the
applicants, of "reasonable alternative means to protect effectively their rights under the
$onvention[190]. n the present case the Court identified such means in the possibility
granted to the employees to have a recourse to the ESA Appeals Board. The latter was, in
fact, "independent of the 'gency, and had jurisdiction "to hear disputes relating to any
explicit or implicit decision ta(en by the 'gency and arising between it and a staff
member[191].





$osp+orus case=

Of particular interest is, as well, the Hosphorus 2ava Lollari &urizm v. Ireland
case[192], concerning the application brought by an airline charter company registered in
Turkey, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi [hereinafter Bosphorus
Airways].
n May 1993 an aircraft leased by Bosphorus Airways from Yugoslav Airlines
[hereinafter JAT] was seized by the rish authorities, when this last was at Dublin for
maintenance. reland did in this way apply the EC Council Regulation 990/93 which, in turn,
had implemented the UN sanctions regime against the Federal Republic of Yugoslavia
(Serbia and Montenegro), and in particular resolution 820/1993. This last called upon member
States to impound all aircrafts in their territories "in which a majority of controlling interest is
held by a person or underta(ing in or operating from the /'[193].
The applicant challenged with success the impoundment in front of the High Court,
which found article 8 of the regulation non applicable and the decision of the rish Authorities
ultra vires. The rish Supreme Court, in appeal, referred the issue to the ECJ for a preliminary
ruling under article 234 of the TEC, on whether the aircraft was covered by Regulation
990/93. This last held that the regulation did apply. Bosphorus Airways' challenge, in front of
the High Court, to the retention of the aircraft was initially successful. n fact, the Court held in
June 1994 that Regulation 990/93 was not applicable to the aircraft.
However, in appeal, the Supreme Court referred a question under Article 177 of the
EEC Treaty to the ECJ. The ECJ found that it was applicable therefore, in its judgment of
November 1996, the Supreme Court applied the decision of the ECJ and allowed the State's
appeal.
n the meanwhile, as both the Bosphorus Airways' lease on the aircraft than the
sanctions regime against the Federal Republic of Yugoslavia had expired, the rish authorities
returned the aircraft directly to JAT, with the consequent loss by Bosphorus Airways of
approximately three of its four-year lease. The applicant therefore submitted the issue to the
ECtHR, assessing the unlawfulness of implementation of the sanctions regime by the rish
authorities. n particular, such conduct tantamounted to a violation of Article 1 of the
Convention[194] and of Article 1 of Protocol No. 1[195], as it consisted in a reviewable
exercise of discretion, which de facto had caused an impoverishment of the Airline's property
right.
Central results, therefore, the "extent to which State action can be justified by its
compliance with obligations flowing from its membership of an international organisation to
which it has transferred part of its sovereignty.[196]
Preliminarily the ECtHR assessed that "the complaint about that act fulfilled the
jurisdictional prere!uisites under the $harter, including ratione loci, personae and
materiae[197]. n reference to article 1, it has to be noted that it was not disputed that the
implementation was done by the rish authorities, on rish territory, following a decision by the
rish Minister for Transport, therefore falling within the jurisdiction of the rish State.
Relatively to the violation of article 1 of Protocol one, the Court started by stressing
that the EC Regulation 990/93[198] "was generally applicable and binding in its entirety
+pursuant to 'rticle CMN, now 'rticle GJN, of the %$ &reaty,, so that it applied to all member
States, none of which could lawfully depart from any of its provisions[199]. Moreover, always
in the Court's view, its direct applicability could not be disputed, as the Regulation had, by the
time of the impoundment, already become part of rish domestic law. The rish authorities,
therefore, rightly considered themselves obliged to impound any departing aircraft to which
they considered Article 8 of EC Regulation 990/93 applied[200]. Furthermore the Court
affirmed that the "impugned interference was not the result of an exercise of discretion by the
Irish authorities, either under $ommunity or Irish law, but rather amounted to compliance by
the Irish State with its legal obligations flowing from $ommunity law[201].
Lastly, the Court found the protection of fundamental rights by Community law to be
equivalent to that of the Convention system, therefore "conse!uently, the presumption arises
that Ireland did not depart from the re!uirements of the $onvention when it implemented legal
obligations flowing from its membership of the %$[202].
On the point it is useful to recall the concurring opinion of Judge Ress, which, even if
agreeing on the result that there was no violation of article 1 of Protocol one, in any case
criticized the reasoning of the Court. n his opinion, the idea of a presumption of Convention
compliance should not exclude a ECtHR's case by case review.

/,/,5 F'R#ER %RTIC"E /D 'F T4E I' DR%FT %RTIC"ES %(D (E) %RTIC"E ;0

Returning back to the analysis of art. 28, two elements appear, prima facie, necessary
for international responsibility of the member State: firstly the State must have provided the O
with the competence to circumvent the obligation, through the transfer of State functions or
the establishment of functions that the same State may not have; secondly the O must have
committed an act that, if committed directly by the State, would have constituted a breach of
that obligation.
n reference to the second requisite it must be noted that the mere fact that the
obligation is not binding for the organization itself appears to be alone insufficient for the rise
of international responsibility. Moreover the act must constitute a breach of the obligation,
without the requisite for the State to have caused the organization to commit such act.
Concluding the analysis of this article, with particular reference to paragraph 2, it must
be noted that the mere fact that it does not require the wrongfulness of such act for the O
itself, does not necessarily exclude an international responsibility of the member State in case
of the existence of such an obligation upon the organization.
n the latest version of the O Draft Articles, the specific situation dealt with article 28
has been envisaged in article 60[203], titled the "esponsibility of a member State see(ing to
avoid compliance. t is stated that:
C. ' State member of an international organization incurs international
responsibility if it see(s to avoid complying with one of its own
international obligations by ta(ing advantage of the fact that the
organization has competence in relation to the subject matter of that
obligation, thereby prompting the organization to commit an act that, if
committed by the State, would have constituted a breach of the
obligation.
G. 0aragraph C applies whether or not the act in !uestion is
internationally wrongful for the international organization.
The situation described mirrors the one considered in article 16, "?ecisions,
authorizations and recommendations addressed to member States and international
organizations, which assesses the responsibility of an O "when it circumvents one of its
international obligations by adopting a decision binding a member State or international
organization to commit an act that would be internationally wrongful if committed by the
former organization[204].
As for former article 28, even article 60 does not require a specific intention of
circumvention, as this last "may easily be inferred from the circumstances[205]. Moreover,
the field of application of article 60, uniformly with article 5 of the Lisbon Resolution,
comprises not only "cases in which the member States may be said to be abusing its
rights[206].
Article 60 introduces a third condition: the existence of a "significant lin( between the
conduct of the member State see(ing to avoid compliance and that of the I6[207].
Lastly it has to be stressed that this same principle may be invoked generally, despite
the fact that the present context regards uniquely human rights[208], and was theorized both
in regards to the UN and of Os in general[209].

5, RES-'(SI$I"IT& 'F #E#$ER ST%TES F'R T4E
8I'"%TI'( 'F TRE%T& '$"IG%TI'(S


As it was clearly stressed out in the previous chapter, the question whether member
States may be held liable for the internationally wrongful acts of Os has been the cause of a
wider research among scholars having the aim of finding such exceptions and hypothesis
among the generally accepted rule of the exclusive responsibility of Os. As the legal scenario
appears abundant of O's practice in the treaty domain, a preliminary division appears to be
necessary between obligations contracted only by the Os themselves and those binding
their member States as well.

3 8I'"%TI'( %F % TRE%T& C'(C"UDED $ET)EE( T4E
I(TER(%TI'(%" 'RG%(I*%TI'( %(D % T4IRD -%RT&

nternational law generally denies the existence of any direct responsibility of member
States towards third parties for the infringement of the obligations directly contracted by the
O towards them. On the other hand the necessity to grant a protection to third parties has in
recent times mobilized doctrine in search of any potential effect on member States arising
from such obligations taken by the O[210].

3,3 T4E )'R< 'F T4E I(STITUT DE DR'IT I(TER(%TI'(%"

t is important, preliminarily, to give the coordinates of our quest. For this purpose it is
essential the use of the Lisbon Resolution, which focused on such topic. First of all it is
necessary to have a clear view over the definition of third parties. Article 2 letter A of the
Lisbon resolution precisely defines them as:
". persons other than the organization itself, whether they are private
parties, States or organizationsinclude"ing# States members of an
organization acting in a capacity other than as an organ or as a member
of an organ of the organization.
n the Resolution it is as well clearly affirmed that, given the fact that any O's obligation
towards third parties arises "under international law +including the rules of the organization, or
under the law of a particular State, there is "no general rule of international law whereby
States members are, due solely to their membership, liable concurrently or subsidiarily, for
the obligations of an I6 of which they are members[211].
Nevertheless this was not the vision of the nstitut in the provisional project to the
Resolution. Manifest are the words of article 10: "un accord conclu lOgalement par une
organisation internationale engage juridi!uement tous ses membres. Main source of such a
conviction is the work for the D of R.J. Dupuy on "l9application des r7gles du droit
international gOnOral des trait7s aux accords conclus par les organisations
internationales[212]. n particular, Dupuy affirmed that an agreement undertaken by an O
legally bound all of its' member States as a consequence of the fact that "les %tats members
sont atteints par l9accord en tant !ue parties intOgrantes de l9organisations[213], denying the
existence of an hypothesis of "stipulation pour autrui[214].
Numerous members of the D firmly objected to this hypothesis, reducing it to a
consequence only of specific dispositions of the constitutive act of the organization or of
member States' case by case acceptance of such conventional regime[215]. This brought the
rapporteur to change its convictions, returning to the classical rules of relativit7 and
consensualisme of treaties, as results from its final text and from article 10 of the final project.

3,/ T4E )'R< 'F T4E I"C

This same topic was moreover object of the work of the LC on the Law of Treaties
between States and Os. Of extreme relevance for the elaboration of this question was the
Sixth Report of the special reporter professor Paul Reuter, containing the project of article 36
bis, entitled "effets d9un traitO au!uel une organisation internationale est partie 5 l9Ogard des
%tats members de cette organisation.
n the first paragraph of this same article, it is affirmed that the rights and obligations of
the member States, provided by a treaty concluded by an O to which they are members,
simply arises from the fact that the constitutive act of the O expressly gives such effects[216].
The funding reasoning which brought to those words was, on one side, the
impossibility to consider the member States as third parties to the agreements concluded by
the O itself, and, on the other, the essential necessity to grant juridical security to third
contracting parties. To pursue this double objective, the second paragraph of article 36 bis
presumed the members States' acceptance of rights and obligation, "sauf manifestation
contraire de sa volontO.
n the terms of such project the consent of the member State could arise both from the
prior adhesion to the constitutive act of the organization and in the same moment of the
conclusion of an external agreement by the O. This initial project was nevertheless criticized
because it de facto could apply only to the EC, being this the only organization who's
constitutive act expressly contained a rule aiming to ensure the respect by its' member States
of the international treaties concluded with third parties[217]. Moreover the same centrality
assigned in Reuter's Report to art 228 of the Rome Treaty[218] was condemned being a
serious and possible threat to the autonomy of Os[219]. These critics were fundamental for
the final drafting of article 36 bis, titled "6bligations and rights arising for States members of
an I6 from a treaty to which it is a partyF
"6bligations and rights arise for States members of an I6 from the
provisions of a treaty to which that organization is a party when the
parties to the treaty intend those provisions to be the means of
establishing such obligations and according such rights and have
defined their conditions and effects in the treaty or have otherwise
agreed thereon, and ifF +a, the States members of the organization, by
virtue of the constituent instrument of that organization or otherwise,
have unanimously agreed to be bound by the said provisions of the
treaty) and +b, the assent of the States members of the organization to
be bound by the relevant provisions of the treaty has been duly brought
to the (nowledge of the negotiating States and negotiating
organizations.[220]
This new drafting, through a more restrictive formulation, affirmed the insufficiency of
the mere presence in the constitutive act of a disposition providing that the treaties concluded
by the organizations were binding for its' member States. As results manifestly from the
Commentary to the Draft Articles, the "$ommissionKs intention "wa#s to lay down the rule to
the effect that the creation of an obligation for a third party re!uire"d#, in addition to the
consent of all the parties to the basic treaty, the consent of the States on whom the obligation
"wa#s to be imposed, and that such consent must be express[221].
Therefore three conditions appeared necessary to create rights and obligations upon
the member States.
The first condition consisted in the presence of an express consent, not a mere
intention, of the States and the organizations parties to the treaty, specifically defining the
conditions and the effects of the rights and obligations being created.
Secondly there was the necessity of the consent all the States members to the
organization, which could be expressed in any form, but had to be related to the provisions of
the constitutive act of the O which created their obligations and rights.
Lastly there was the requirement of bringing the consent of the member States to the
knowledge of States and organizations which had participated to the negotiation. The subject
that had to furnish such information, being not specified, could have been the member State,
the organization or both. From this last condition resulted clear the main objective of such
article: "to afford the parties concerned the widest possibilities and choice, on the sole
condition that they (eep one another informed, that they ma(e (nown exactly what they wish
to do and each bring it to the aten[222].
n any case the article was rejected tout court in the Vienna Conference due to the will
both of the represented States and of the Os, which found it on the one side too theoretical
and on the other excessively rigid, as it required unanimity[223].
Both the D than the LC failed in their search of a general principle of international law
binding systematically the member States of an organization to external agreements
contracted by the latter, as results from article 74 para. 3: "the provisions of the present
$onvention shall not prejudge any !uestion that may arise in regard to the establishment of
obligations and rights for States members of an I6 under a treaty to which that organization is
a party[224].




3,5 T4E C%SE 'F T4E EUR'-E%( U(I'(

As was afore mentioned, the TEC is de facto the only constitutive act of an O which
contains an express provision regarding the effects of a treaty concluded by the organization.
n fact article 228 para.2, former article 228 para.7 after the entry into force of the Maastricht
treaty[225] and article 300 para.7 after the amendments made by the treaty of Athens[226],
seems to fund the responsibility for the non-execution of the agreement, vis--vis third parties,
of the member States, along with the organization. The treaty of Lisbon, furthermore, did not
effect such discipline, simply identifying the EC with the EU.
Moreover, this is forecasted despite the wording of the first paragraph of the same
article, which prima facie recalls only the EC as formally part to the treaties. Taking into
consideration the particularity of the EC, which exercises in its domains competences that
have been transferred by the member States, this provision appears as a due consequence
which ensures the juridical security of third parties[227].
n this way, by derogating the principle of the relativity of treaty effects, member States
are bound despite the fact that they are not nominally parties to them. Therefore these last
can be found internationally responsible for violation of such agreements[228].
Confirm of this comes even from the jurisprudence of the ECJ, especially in the
>upferberg judgement, in which the Court affirmed the existence of direct legal links between
the member States of the EC and third parties of a treaty concluded by the Community
itself[229]. The Court particularly emphasized the existence among the member States of the
obligation of the good execution of the agreement both towards thirds parties than towards
the EC itself. There is, therefore, first of all an obligation of the member State to collaborate
with the Community in such execution.
n such light, the same article 228 para. 2 may be seen as a specification of the
principle of Communitarian solidarity enounced in article 5, which affirms that:
"-ember States shall ta(e all appropriate measures, whether general or
particular, to ensure fulfilment of the obligations arising out of this &reaty
or resulting from action ta(en by the institutions of the $ommunity. &hey
shall facilitate the achievement of the $ommunity9s tas(s. &hey shall
abstain from any measure which could jeopardise the attainment of the
objections of this &reaty[230].
The Court in any case didn't clarify whether only the Community should be considered
responsible on an international level[231]. n favour of such hypothesis, which has more than
mere similarities with the one of treaties concluded by Os, a consistent part of doctrine
affirmed that article 228 para. 2, in reality, was only the source of a strictly communitarian
obligation, interpreting the disposition as a mere reminder of the obligation of the member
States to respect and eventually cooperate for the compliance of the obligations deriving from
external agreements signed by the Community. Source for the rise of such member States'
obligation is their being part of the same EC's juridical order[232].
A lexical analysis of the article confirms such cogitation. The text clearly refers both to
member States than to the nstitutions of the EC. Being the latter obviously lacking of
international legal personality, they cannot be found internationally responsible for the breach
of the obligations towards third parties[233].
Moreover, as was brilliantly noticed by professor Ph. Manin, even if it was to be
recognized to article 228 para. 2 an external effect, in any case the disposition could not be
invoked by third contracting parties, being a res inter alios acta.[234]
Third parties find, in any case, tutelage in the possibility given to the Commission to act
against the non-compliance of the member States with the obligations, indirectly imposed on
them by article 228 para. 2, through the procedure ex article 169 of the TEU[235]. Several
commentators stressed out even how giving such external effects would cause a substantial
loss of the Community's autonomy, reducing it to a mere "moyen d9action collectif de ses
membres[236].
n favour of an internal effect of article 228 para. 2 appears to be the same ECJ in a
relatively recent controversy between France and the Commission[237]. n this infringement
procedure, the French government affirmed the non-conformity of the Agreement signed on
23 September 1991 by the Commission of the European Communities and the Government
of the United States of America regarding the application of competition laws. Of particular
importance results a passage in the reasoning of the Court, on which it asserted that "it is the
$ommunity alone, having legal personality pursuant to 'rticle GCE of the &reaty, which has
the capacity to bind itself by concluding agreements with a non3member country or an I6,
and continuing, " "&#here is no doubt, therefore, that the 'greement is binding on the
%uropean $ommunities "# In the event of non3performance of the 'greement by the
$ommission, therefore, the $ommunity could incur liability at international level.[238]
The Court did not refer to member States as responsible, on an international level,
jointly with the Community. This would have been a logical consequence of the attribution of
external effects to article 228 para. 2. Therefore not even article 228 para. 2 can be seen as a
derogatory disposition to the general principle of the relativity of international law.
This same position was even taken by the Government of Germany, relatively to article
300 para. 7 of the TEC, in a declaration, on which more will be said later on: "the article solely
forms a basis for obligations under community law vis353vis the %$ and does not permit third
parties to assert direct claims against the States members of the %$[239].
Confirmation of the fact that, on the basis of the constituent instrument, an EC member
States' responsibility, deriving from the breaching by the EC of its treaty obligations, cannot be
assumed, derives even from Article 300, paragraph 7, of the TEC. n fact, such article does
not intend to create obligations for member States towards non-member States, as it reads as
follows: ""'#greements concluded under the conditions set out in this 'rticle shall be binding
on the institutions of the $ommunity and on -ember States. The ECJ pointed out that this
provision does not imply that member States are bound towards non-member States and thus
may incur responsibility under international law[240].
n conformity with this point of view, provisions that may be contained in status-of-
forces agreements, concerning the distribution of liability between a State providing forces to
an O and that organization, cannot be regarded, under international law, as per se relevant in
the relations with third States[241].
n conclusion it appears pacific from State's and O's practice and the position taken by
the majority of doctrine and jurisprudence, that only Os are bound by treaties concluded en
leur proper nom with third parties, both States than organizations.


/ 8I'"%TI'( 'F % TRE%T& C'(C"UDED $& $'T4 T4E I'
T4%( 'F T4E #E#$ER ST%TES %(D % T4IRD -%RT&

Different is the perspective in the case of treaties concluded between both the O that
its member States and third parties.

/,3 #I7ED %GREE#E(TS 'F T4E EUR'-E%( U(I'(

t is necessary, before indicating the fields in which member States and the EU are
conjointly parties to treaties with third parties, to establish which are the rules of law
applicable for the conclusion of external agreements by the EU in which it has an exclusive
competence, apparently limited to the fields of exclusive competence assigned to the Union.
n particular the '%& case[242] was essential in clarifying such idea. n such affaire,
the Commission requested the annulment of the Council's proceedings regarding the
negotiation and conclusion, by the Community's Member States, of the European Agreement
concerning the work of crews of vehicles engaged in international road transport [hereinafter
AETR]. The ECJ, in a famous passage of the judgement, cleared out from any doubts "that in
its external relations the $ommunity enjoys the capacity to establish contractual lin(s with
third $ountries[243].
Moreover the Court stressed out that the Community's authority in the fields of its'
exclusive competence "arises not only from an express conferment by the &reaty [.] but may
e!ually flow from other provisions of the &reaty and from measures adopted, within the
framewor( of those provisions, by the $ommunity institutions[244]. As a due consequence
"each time the $ommunity, with a view to implementing a common policy envisaged by the
&reaty, adopts provisions laying down common rules, whatever form these may ta(e, the
-ember States no longer have the right, acting individually or even collectively, to underta(e
obligations with third countries which affect those rules[245].
Under Article 3 (e) and article 5 "the -ember States are re!uired on the one hand to
ta(e all appropriate measures to ensure fulfilment of the obligations arising out of the &reaty
or resulting from action ta(en by the institutions and, on the other hand, to abstain from any
measure which might jeopardize the attainment of the objectives of the &reaty.[246].
Member States, therefore, do not have powers concurrent to the ones of the Community
"since any steps ta(en outside the framewor( of the $ommunity institutions would be
incompatible with the unity of the $ommon -ar(et and the uniform application of $ommunity
law[247].
There are nevertheless numerous cases in which the treaty's content regards both
fields of exclusive competence of the Community than of the competence of the member
States. n such cases the Community and the member States participate jointly to the
conventional regime, each in their exclusive domains[248].
t is for this reason that mixed agreements, originally not provided by the Rome Treaty,
were instituted and have flourished in an abundant practice[249], as for the General
Agreement on Tariffs and Trades[250]. Thanks to this new instrument the member States,
which have become parties to an agreement concluded together with the Community, are
responsible jointly with the organization vis--vis third parties. The situation, furthermore, was
not modified subsequently to the entry into force of the Lisbon Treaty[251]. The same article 6
(2) TEU contains a constitutional duty in such sense, as both the Union than the member
States are now parts to the ECHR.
n order for the third party to be able to identify the holder of the specific obligations,
and to grant their execution, it appears to be of central importance the information on the
repartition of competences among the Community and its' member States[252]. n the first
agreements nevertheless there was no indication of such repartition. The Community and its
State members presented themselves to the co-contractors as "un ensemble indivis de
comp7tences[253]. Clear example of such agreements is the 1974 Convention for the
Prevention of Marine Pollution[254].
The only way of granting juridical security to the third contracting party remains to
consider the Community and its member States as conjointly responsible for the execution of
the entire agreement[255]. The Community, same as for the member States, may, in absence
of a notification to the third parties of a precise division of competence, be found responsible
for the illicit breach committed by one of its' member States in the fields of its' exclusive
competence[256].
Professor Giorgio Gaja specified his opinion on this particular aspect: when it is the
same treaty that clearly provides different and distinct obligations on the Community and on
its' member States, each one of them responds for the respect and execution of its own
obligations[257]. n theory this appears conform to the fact that both the Community and the
single member States result bound from the Treaty and concurrently responsible, as it does
not contrast with the principle of relativity of treaties[258].
t has to be noted that, in any case, being the non-execution of the mixed agreement a
violation ipso facto of Communitarian law, the Commission could, and should, react through
the procedure ex article 169 obliging the negligent State to uniform to his conventional, now
Communitarian, obligations[259].
n a second moment the necessity of a clear division of competences became central,
as results in the negotiations for the opening to Os of the UN Convention on the Law of the
Sea[260]. The necessity, indispensable for the other contracting parties, to know upon which
subjects would fall the responsibility for the non-execution of the obligations deriving from the
Convention, was finally taken into consideration by the Community, which, for the first time,
faced the situation of negotiating with a large number of States with whom generally it did not
have habitual relations[261]. n particular, in the wording of articles 5 para. 1st and 6 2nd of the
X Annex to the 1982 Convention, results not only the necessity of a "declaration specifying
the matters governed by this $onvention in respect of which competence has been
transferred to the organization by its member States which are 0arties to this $onvention
[262], but even the possibility given, in every concrete case to each State party to the
Convention, to ask "an I6 or its member States which are States 0arties for information as to
who has responsibility [.][263] and, furthermore, joint and concurrent responsibility in case
of failure of such communication.
The same rules results to be applicable to the participation of Os to the Agreement for
the mplementation of the Provisions of the Montego bay Convention on the Law of the Sea,
in particular ex article 47 para. 1[264]. Nevertheless such concurrent responsibility sanctions
concern only the hypothesis of the default of information, meanwhile in all the other cases
Community and Member States are found responsible for the non-execution of the obligations
of their own competence, as reported in their declaration.
The UN Convention on the Law of the Sea was followed by many other treaties having
the same dispositions relatively to the declaration of competences and the consequent
responsibility, imposing on the Community and on its member States the further obligation to
inform third contracting parties of eventual mutations in their repartition of competences[265].

/,/ T4E I(TER(%TI'(%" 'RG%(I*%TI'( %S % ST%TE %GE(T

Outside the specific context of treaties, it has even been affirmed the liability of
member States towards third parties, when the O has acted as a State agent, in law or in
fact[266]. The international legal scenario has tried to fund the responsibility of State
members for the non-execution of the obligations contracted by the organization on the
identification of this last as an agent, a mandataire, of its member States, these last seen as
"%tats repr7sent7s institutionnellement[267].
n this light treaties are seen as "le simple r7sultat de l9activit7 collective des %tats
membres and the organization as "un organe commun dont tous les actes sont imputables
aux sujets pour les!uels il agit[268]. Necessary now is to find a legal basis for this
representation. With a particular attention to article 228 para. 2 of the Rome Treaty, part of
doctrine has found such basis in the O's constitutive act, affirming therefore that "c'est ce
constitutional abstract consent de la part des repr7sent7s !ui contitue le fondement du
rapport de repr7sentation en cause[269].
n this view the member States result to be the real addressees of the obligations
contracted by the O, theirs is even the responsibility in case of non-execution. As was
brilliantly pointed out by another part of doctrine, this ancestral theory must not be accepted.
Moreover, it results as well incompatible with the same concept of O[270].
t has to be noted that representation in international law must fund itself on a specific
capacity and that the existence of a delegation of powers to engage the member States vis--
vis third parties may not be simply inferred. On the opposite " [.] if the instrument of act
creating the organ does not indicate that it is authorized on behalf of the -ember States, the
presumption must normally be that its acts commit only the organization[271].
Only in presence of a specific juridical link of representation a direct responsibility of
the Member States may be envisaged[272]. This same conclusion would be, in other cases,
impossible due to the different international legal personalities of the O and of its member
States.
t is as well possible to arrive to the conclusion of the absence of a representative
relation between an organization and its member States from an internal law
perspective[273]. On this point clarifying are the words of the English Court of Appeals in the
-aclaine ;atson v ?pt og &rade and Industry case, denying the existence of a representation
of the member States by the nternational Tin Council[274]. The Court, remembering the
necessity for the creation of a mandate of the consent of the two parties, affirmed " that there
was no intention on the part of the member States to authorize the I&$ as an agent in ma(ing
tin contracts or the loan contracts, and no intention on the part of the I&$ to act as such[275].
The same difficulty encountered in international law results even in national law: the material
demonstration of the existence of a juridical link between the organization and its' member
States[276].
n conclusion it has to be assessed that obligations taken by an O en son nom proper
do not create links between its member States and third contracting parties.

4. #E#$ER ST%TE9S -%RTICI-%TI'( T' %(
U("%)FU" %CT 'F T4E I'

The LC, in its work on State responsibility, investigated on a series of situations, other
than the ones treated above, in which such responsibility derives from the participation of the
member States to the overcoming of the O's unlawful act.
n the light of our scope, three are in particular the situations in which an individual
State responsibility appears to be funded on the violation of international obligations set on
the same member States: the situation of co-authors (A), aid or assistance to the commission
of a wrongful act by the O (B), and le d7faut de vigilance (C).

3 T4E SITU%TI'( 'F C'E%UT4'RS

Activities that involve both the O and its member States may originate a concurrent
responsibility. This appears to be both the premise and the conclusion[277].
Different are the situations, included in such hypothesis, such as the responsibility for
wrongful acts committed by member States' organs put under the disposal of the
organization[278] or for the unlawful acts committed by the UN peace-keeping forces in
reference to their nationality[279].

3,3 RES-'(SI$I"IT& F'R )R'(GFU" %CTS C'##ITTED $&
#E#$ER ST%TE'S 'RG%(S -UT U(DER T4E DIS-'S%" 'F T4E
'RG%(I*%TI'(

n relation to the first situation reference must be made to article 5 of the draft articles
elaborated by the LC, in which it is affirmed that:
"1. &he conduct of an organ or agent of an international organization in
the performance of functions of that organ or agent shall be considered
as an act of that organization under international law whatever position
the organ or agent holds in respect of the organization[280].
Article 5 is the correspondent version of article 4 in the ASR:
"&he conduct of any State organ shall be considered an act of that State
under international law, whether the organ exercises legislative,
executive, judicial or any other functions, whatever position it holds in the
organization of the State, and whatever its character as an organ of the
central .overnment or of a territorial unit of the State.
Article 4 states, in the first paragraph, ""t#he principle of attribution for the purposes of
State responsibility in international law that the conduct of an organ of the State is attributable
to that State.
n reference to States, such article ""c#overs all the individual or collective entities
which ma(e up the organization of the State and act on its behalf ., including even organs
""# of any territorial governmental entity within the State on the same basis as the central
governmental organs of that State[281]. Therefore, based on the principle of the unity of the
State, all acts or omissions of its organs "are to be regarded as acts or omissions of the State
for the purposes of international responsibility[282].
n reference to the specific O's legal system, a similar reasoning to the extent of
excluding the relevance of the terminology used in the internal law of a State in order to
define an organ. Moreover, the CJ, both in the eparation case, and in ts Advisory Opinion
on the Applicability of article V, section 22, of the Convention on the Privileges and
mmunities of the UN, stuck to a liberal interpretation of the word "agents, affirming that "the
essence of the matter lies not in their administrative position but in the nature of their
mission[283].
The CJ, in a subsequent advisory opinion, newly addressed the issue of attribution of
conduct sustaining that: "the *nited Nations may be re!uired to bear responsibility for the
damage arising from such acts[284], without making any distinction between principal and
subsidiary organs.
Furthermore t included that the conduct of the UN was made up of "acts or omission
of its agents[285], both officials than persons acting on behalf of the UN "on the basis of
functions conferred by an organ of the organization[286].
The reasoning of the Court has a general value, therefore it can be applied to all
organizations. On this point, relevant are the words chosen by the Swiss Federal Council in
one of ts decisions: ""%n# rOgle g7n7rale, sont imputables 5 une organisation internationale
les actes et omissions de ses organes de tout rang et de toute nature et de ses agents dans
l9exercice de leurs comp7tences [287].
Passing on to the comparison of article 5, paragraph 2, of the O Draft Articles, and
article 4 of the ASR, it is clear that, notwithstanding the reference to the rules of the
organization, in exceptional cases "functions may be considered as given to an organ or
agent even if this could not be said to be based on the rules of the organization[288], or
pursuant to them.
Central for the attribution of the conduct results to be the criterion of effective control
over the conduct, stated in article 6 of the O Draft Articles, titled "$onduct of organs or
agents placed at the disposal of an international organization by a State or another
international organization4F
"&he conduct of an organ of a State or an organ or agent of an
international organization that is placed at the disposal of another
international organization shall be considered under international law an
act of the latter organization if the organization exercises effective
control over that conduct.
There is nonetheless nothing which interferes with an eventual will of the lending State
or organization to conclude an agreement specifically regulating the eventual responsibility for
an internationally wrongful act committed by the lent organ[289]. For example, the model
contribution agreement relating to military contingents placed at the disposal of the UN by one
of its member States, provides, on one side, the liability of the UN towards third parties and,
on the other, the right of recovery of the UN from the contributing State in circumstances of
"loss, damage, death or injury from gross negligence or wilful misconduct of the personnel
provided by the .overnment[290].
t must be nevertheless noted, firstly, that such agreements deal only with the
distribution of responsibility, rather than with the attribution of conduct, and, secondly, that in
any case third States, under the general rules are not deprived of their rights towards the
State or the organization whose responsibility is asserted.
More will be said on such criterion in reference both to the attributions of the unlawful
acts committed by military contingents that States put under the disposal of the UN, than to
the case of responsibility of both member States and third States for the exercise of direction
and control over the commission of an international wrongful act by an O [291].


3,/ E7CESS 'F %UT4'RIT&

Article 7 of the O Draft Articles deals with the ultra vires conduct of organs or agents of
an O, stating that:
""&#he conduct of an organ or an agent of an international organization
shall be considered an act of that organization under international law if
the organ or agent acts in that capacity, even though the conduct
exceeds the authority of that organ or agent or contravenes instructions.
mportant is to identify the cases in which "the conduct exceeds the authority. This is
likely to happen when the conduct of the organization goes beyond its competence or when,
even if it doesn't do so, nevertheless is transcends the authority of the organ or agent.
n reading the present article in the light of article 5, the rules of the organization
appear relevant in order to attribute the conduct to the O. Same dissertation can be made in
reference to the instructions of the O, even if limited to the case in which they bind the organ
or the agent.
The CJ[292] itself affirmed the existence of such rule, specifying the requirement that
the organ or agent has to act "in that capacity. This condition, present even in article 7 of the
ASR, is well explicated in the Commentary to the ASR: "the conduct referred to comprises
only the actions and omissions of organs purportedly or apparently carrying out their official
functions, and not the private actions or omissions of individuals who happen to be organs or
agents of the State[293].
Moreover such interpretation result conform to the same O practice, finding
exemplification in the following statement of the General Counsel of the MF: "'ttribution may
apply even though the official exceeds the authority given to him, he failed to follow rules or
he was negligent. 2owever, acts of an official that were not performed in his official capacity
would not be attributable to the organization[294].

3,5 U("%)FU" %CTS C'##ITTED $& T4E U( -E%CEE<EE-I(G F'RCES

1.3.1 EFFECTVENESS OF CONTROL

The attribution of conduct of the military contingents put under the disposal of the UN in
the context of peace-keeping operations, has become through time a controversial
issue[295]. The UN, in principle, assume to have an exclusive control on such organs: ""'#s a
subsidiary organ of the *nited Nations, an act of a peace(eeping force is, in principle,
imputable to the 6rganization, and if committed in violation of an international obligation
entails the international responsibility of the 6rganization and its liability in
compensation[296]. This last statement, made by the UN Legal Counsel, sums up the UN
practice in the peacekeeping operations, with special reference to the United Nations
Operation in the Congo (ONUC) and the United Nations Peacekeeping Force in Cyprus
(UNFCYP).
n such operations the control that the State retains over disciplinary and criminal
matters is of central significance in relation to the attribution of conduct. n fact, "attribution of
conduct to the contributing State is clearly lin(ed with the retention of some powers by that
State over its national contingent and thus on the control that the State possesses on the
relevant respect[297].
The UN have denied the idea that the conduct of military forces of State or of O could
be attributed to them on the basis simply of the authorization of the UN Security Council
[hereinafter UNSC] to take necessary measures dehors the chain of command binding them
to the UN. This point was made clear in a letter between the Director of the Field
Administration and Logistics Division of the Department of Peacekeeping Operations of the
UN and the Permanent Representative of Belgium to the UN: "*NI&'/ troops were not under
the command of the *nited Nations and the 6rganization has constantly declined liability for
any claims made in respect of incidents involving those troops. [298]
Central results one again the criterion of the effectiveness of such control, as confirmed
by the works of a number of mainstream scholars[299]. Moreover, the degree of effective
control, or "operational control[300] as some scholars denominated it, results central not only
in peacekeeping operations, but even with regard to joint operations.
n the latter case "international responsibility for the conduct of the troops lies where
operational command and control is vested[301]. Even in this occasion, two are the
alternatives: an agreement "establishing the modalities of cooperation between the State or
States providing the troops and the *nited Nations[302] or, in absence, with a case by case
approach, based on the application of the degree of effective control, as sustained by the UN
Secretary General [hereinafter UNSG].

1.3.2 BEHRAM AND SARAMAT CASES

Specific reference deserves in particular the attribution of conduct of the unlawful acts
committed by the peace-keeping forces of the UN in the Hehrami case[303] and in the
Saramati case[304]. Central issue challenging the Court was the inquiry over the presence of
such effective control of the National State over the military troops put under the disposal of
the international peace-keeping operation.
n the Hehrami case the applicants affirmed the violation by the French State of article
2 of ECHR, based on the asserted exercise by this State of an effective control over its troops
in the specific territory where the violations took place. On the other hand the French
government sustained the absence of such control being the KFOR a multinational entity. n
the Saramati case the applicants affirmed the violation of articles 5 and 6 of the ECHR[305].
n both hypothesis the Court excluded any State responsibility, affirming that the conduct of
the military forces had to be attributed to the UN.
The reasoning of the Court is characterized by two main passages. n reference to the
asserted negligence of the French troops in clearing the mine-fields, the Court affirmed that
such operation was of the competence of the transitory administration of the UN, not of the
KFOR[306]. In secundis, in deciding weather the conducts were attributable to the member
States or to the UN, the Court concluded in favour of the latter, therefore declaring the claims
inadmissible.
n particular the Court based its assertion on the convincement that it was the UNSC
which "retained ultimate authority and control and that effective command of the relevant
operational matters was retained by N'&6[307]. Such reasoning generates more than a
doubt, especially in relation to the reconstruction of the distribution of competences.
Several authors pointed out an application of the criterion different from that envisaged
from the Community[308]. n relation to the division of competences, the creation of the
UNMAC did not relieve the KFOR fro its' responsibilities, as results from both the military
agreement between the Security Forces and Serbia[309] and from the UNGA resolution
1244/1999 of the 10th of June 1999, which invests the KFOR with the authority to take all
appropriate measures "to establish a safe environment in >osovo[310].
Relatively to the attribution of the conduct of the KFOR troops, three are the possible
solutions: the UN, surely endowed with international legal personality[311]; the NATO, who's
personality must be here presumed, and the national States of the military and civil troops.
n reality the UNSC, differently from what sustained by the Court, did not have the
ultimate authority on the KFOR. The Council, in fact, gave only the authorization for the
displacement of the multinational forces under the command of the NATO, as was brilliantly
stressed out by the "Penice $ommission[312]. The KFOR is not, in fact, a UN peace-keeping
operation, even if its' mandate was defined by a UN Resolution. Decisive on the point results
the factual data of the effective control over the organs that the States put under the
disposition of an O. n the present case the UN lacked of such a control. Moreover a
responsibility of the UN could have existed only in presence of a precise authorization by this
last in fulfilling that specific act, as affirmed in article 16 para. 2 of the O Draft Articles: "an I6
incurs international responsibility if it authorizes a member State or I6 to commit an act that
would be internationally wrongful [.][313]. n deciding if the conduct has to be attributed to
the States or the NATO, central results the analysis of the nature of the "unified command
and control exercised by the NATO[314]. As results from the work of the Venezia
Commission ""&#roop contributing States have therefore not transferred Qfull command4 over
their troops[315], therefore maintaining a certain degree of control. t is even necessary in
this occasion a case per case approach, from which results in the Saramati case, a
responsibility of the KFOR, as the authorization for the arrest came directly from its' chief
commander[316].
More complex appears to be the Hehrami case, in which nevertheless the French
commander had a certain degree of autonomy, potentially funding the responsibility of the
French State.
n reality the Court could have simply based its' decision on the principle of juridical
space on geographical grounds, due to the fact that Serbia was non a contracting party to the
ECHR[317]. Moreover the principle of "monetary gold[318], in other words the lack of identity
between the member States and the States parties to the Council of Europe, would have
constituted an insurmountable obstacle to the jurisdiction of the Court.
These two cases were at the centre of a debate on the possibility to fund a State
responsibility in relation to an unlawful act of the O to which they are members. n particular,
interesting results the hypothesis of a general responsibility of the member State for the
actions of its' organs put under the disposal of the O.
Following the reasoning of this thesis two are the main consequences. Firstly the
jurisdiction of the Court doesn't find anymore the boundary of the competence ratione
personae, secondly it eliminates the possibility for the member States to avoid their duties
under the Convention through the institution of the O. On the point illuminating are the words
of V. Brownlie: ""I#t is illogic to suppose that a group of States can manufacture an immunity
from responsibility toward third States by the creation of an I6[319].
This idea results conform to the position taken by the European Court in the
Hosphorus v. Ireland case[320]. More precisely the Court affirmed that the transfer of
functions to the EC did not free its' member States from their responsibilities under the
Convention.
A second theory funds the liability of the member States for the omission to watch over
the actions taken by the organs put under the disposal of O; argument which will be treated
more deeply later on[321]. mportant now is to remember that such positions aim to establish
a concurrent responsibility of the member States based on the assertion that a certain degree
of control and a general duty of vigilance was nonetheless present[322].
Confirm of this can be found in the Agreed principles for the Russian participation to
the nternational Security Force for Kosovo, in the part in which it is granted to the sector
commander or the commander of a national contingent within a sector to decline an order
from the KFOR commander. n the case of an acceptance of an illegitimate order it could be
recognized therefore the responsibility of the member State under article 25 of the O Draft
Articles [323].
Last hypothesis is that of a collective responsibility of all the member States for an
international wrongful act committed by the O to which they are members. As previously
assessed, doctrine is divided between those who sustain the existence of a subsidiary
responsibility of the member States and those who exclude it on the basis of the separate
legal personality of the O[324]. Briefly it is necessary to recall the conclusions of special
rapporteur Giorgio Gaja, which looks at the case of a member State responsibility as an
exception, admissible only in presence of the acceptance of such responsibility by the
member States or if the States "by their conduct, cause a non3member State to rely, in its
dealing with the organization, on the subsidiary responsibility of the member States of the
organization[325].




/ ST%TE RES-'(SI$I"IT& F'R T4E %ID 'R %SSIST%(CE
T' T4E C'##ISSI'( 'F % )R'(GFU" %CT $& T4E I'

Art. 25 of the Draft Articles affirms that:
a "State which aids or assists an I6 in the commission of an
internationally wrongful act by the latter is internationally responsible for
doing so ifF
+a, &hat State does so with (nowledge of the circumstances of the
internationally
wrongful act) and
+b, &he act would be internationally wrongful if committed by that State.
[326]
Various may be the situations which concrete such responsibility. One might be putting
the State's territory or instruments under the disposal of the organization with the scope or the
knowledge to permit the violation of international law. Another situation generating
responsibility could be the exercise of the typical activities of the member States in the
functioning of the O, such as the exercise of vote in the adoption of institutional acts of Os,
as will be better seen in the following paragraph[327].

/,3 RES-'(SI$I"IT& 'F #E#$ER ST%TES F'R T4E %$USE 'F
"EG%" -ERS'(%"IT& 'F I'S %T T4E DECISI'(E#%<I(G "E8E"

t is impossible to deny that all State members exercise, to some extent, necessarily
some type of control over the O's decision-making process, with the scope of influencing the
adoption of the most favourable decisions for "their own interest, the interest of all or the
interest of the organization[328]. n highly integrated organizations it is a fact that all
decisions are taken with the consensus, in its positive or negative form, of at least the majority
of its member States. This does not mean that in presence of an international wrongful act of
an O, consecutively there will always be a joint or a concurrent responsibility of its member
States[329]. On the other hand, the autonomous international personality of an O cannot
become a shield behind which the member States may find shelter from the responsibility
deriving from such acts that, if committed by the same State, would have constituted an
unlawful act.
Bearing in mind that a certain control is always present and legitimate, which are the
concrete cases in which such a control illegally undermines the autonomy of an organization?
n other words, when may a State member be held concurrently responsible?
Some authors have in the past sustained the existence of a general and systematic
responsibility of the States exercising control over the functioning of the Os to which they are
members[330]. This theory cannot be accepted because it annihilates the autonomy of the O
towards its' creators. The presence of a control inhibiting the decisional autonomy of the
organization must be found in the specific case. it cannot be generally presumed[331].
The LC gave a narrow definition of this phenomenon, adding another element: "the
circumvention of international obligations by member States in the establishment of an
I6[332]. n relation to the content of O Draft Article 28, it results that for the LC the
responsibility of member States arising out of the establishment of an O[333] cannot be
avoided by showing the absence of an intention to circumvent the international obligation, due
to the fact that a specific intention is not required. n any case this interpretation and the
requisite of the circumvention regard uniquely the moment of the creation of the O. ts field of
application cannot, should not, be extended nor to other cases nor universally.
The LC, as will be explained later on, has found another case from which can derive
the exclusive responsibility of a member State: the exercise of direction and control over the
commission of an international wrongful act by an O[334].
n doctrine such a solution finds its' ground on the criterion of overwhelming and
effective control exercised by the member States, but it lacks of indications, as "the tools
used in exerting such control are not always identifiable[335]. Difficulty in its' application and
in finding an abstract definition of such principle derives from the necessity in primis to
demonstrate the existence of the control, in secundis that it is overwhelming. A positive effect
deriving from a "loose criterion, not defined abstractly and therefore applicable to a great
variety of factual situations, is the possibility to relate it to a wide range of Os[336].
For an analysis of such criterion are necessary both a schematic and a case-by-case
approach. This because in many cases such type of control is exercised in such a way to be
"context-dependent, in other words non-observable or non-identifiable a priori[337]. As
already anticipated a mere participation to the decision-making process cannot by itself
constitute such a violation[338], unless leading to an unlawful complicity. t can't as well be
considered tantamounting to a violation when such an influence is expressly provided by the
constitutive treaty of the organization, such as in the case of UNSC's subjection to the rule of
"great 0ower unanimity". n fact, the UNSC's permanent members are endowed with veto
power, through which they can block any Council Resolution[339].
As international practice shows, not even the mere domination of a State over the
organization, due to its major influence, tantamounts to a violation of this rule. n cases such
as the United States of America in the nternational Monetary Fund[340], in which power is
divided in consideration of the size of the participation quota, even if there is a consequent
influence of the United States on the policy and the decision-making process of the
organization, this is legitimate.
From these examples results a necessity of a clear and irresistible influence over the
decision-making process; irresistible by the organization and the member States. Control can
be even circumscribed and limited in time, as in the case it was directed at the making of a
single decision, but it must be decisive.
On the other hand another requirement needs to be matched: the existence of a
causal link between the overwhelming control and the wrongful act. This does not implicitly
mean that there must be an intention to commit the wrongful act. On the opposite, this is not
required[341]. Same conclusion must be given if reference to the intent of prodding the
organization in committing an internationally wrongful act, contrarily to the case of coercion,
on which we'll subsequently return. Difficulties are encountered in the determination of the
knowledge of the circumstances of the control by member States, especially to trace the
subjective element of the wrongful act, equally to those met by the CJ in determining the
Serbian government's knowledge of the Bosnian Muslim genocide in the region of
Srebrenica[342].
t has to be stressed out that it is not required that all member States exercise such
control: responsibility therefore will regard only those member States effectively exercising
such control, causing this some difficulties in the apportionment of the reparation. These
States will be also concurrently responsible for the wrongful acts that are the necessary
consequences of any such decisions. The wrongfulness of the O's decision is yet not
necessitated in itself. t is considered in this case to amount to "preparatory actions of the
wrongfulness[343].
n any case it must be noted that the participation of the State to the adoption of these
preparatory acts by the organization can constitute by itself wrongful assistance or
participation[344]. n particular responsibility may arise from the vote of a member State for
the adoption of an unlawful decision of the O, as it concretes assistance to the organization
for the perpetration of the breach of the organizations' obligations[345]. The attribution of
responsibility is independent from the fact that the vote per se does not constitute an unlawful
act, depending on the knowledge of the unlawful consequences of adopted act. nteresting on
the point results to be the position of the delegation of China expressed in the LC:
"since the decisions and actions of an I6 were, as a rule, under the
control, or reliant on the support, of member States, those member
States that voted in favour of the decision in !uestion or implemented
the relevant decision, recommendation or authorization should incur a
corresponding international responsibility[346].
Particular difficulties have been concretely encountered in the effort to demonstrate the
de facto presence of such control, especially in relation to the proof of the absence of the
authority and autonomy of the O, which cannot "be inferred from the fact of the membership
alone[347].
A distinction must be made between the attribution of conduct and attribution of
responsibility. Os cannot be considered as State organs, therefore overwhelming control has
to be seen as a principle of attribution of responsibility[348]. The abuse of the international
legal personality of an O must remain alien to the existence of an international obligation on
States to ensure that any organization to which they are members exercises its powers in
conformity with their international obligations[349].
/,/ RES-'(SI$I"IT& 'F $'T4 #E#$ER ST%TES %(D T4IRD ST%TES
F'R T4E E7ERCISE 'F DIRECTI'( %(D C'(TR'" '8ER T4E
C'##ISSI'( 'F %( I(TER(%TI'(%" )R'(GFU" %CT $& %( I'

The LC, along with hypothesizing an exclusive responsibility of member States at a
creation level, affirmed the existence of an exclusive responsibility of member States for the
exercise of direction and control over the commission of an international wrongful act by an
O. n this particular case, being present "a domination over the wrongful conduct[350] and
not only a mere influence or participation in the decision-making process, the wrongful act is
directly attributed to the member State[351].
n the present case a joint or concurrent responsibility of the member States exercising
overwhelming, effective control appears as a logical consequence. This idea is corroborated
by the comparison between two inverse situations. As international law affirms the
responsibility of the O for the acts committed by its member States as mere agents of such
organization, in other words acting without any discretion in the implementation, there is no
real reason why the contrary may not be as well true.
Another particular feature of this principle appears to be its applicability both to
member and non-member States, excluding situations in which member States exercise
control on a decision-making level.

5 "E DEF%UT DE 8IGI"%(CE

A third hypothesis of State responsibility regards the absence of vigilance of the
member State on the O which has breached its' international obligations. n concrete such
d7faut, in the relations between the organization and its' member States, may regard both
activities taking place on the territory of the member State than the violation of the so called
"due diligence[352].
With reference to the first case, the responsibility of the member States resides on the
principle of territorial sovereignty. Clear on the point are the words of the Permanent Court of
Arbitration in the las 0almas case:
"&erritorial sovereignty, as has already been said, involves the exclusive
right to display the activities of a State. &his right has as corollary a dutyF
the obligation to protect within the territory the rights of other States "#
with the rights which each State may claim for its nationals in foreign
territory[353].
n any case the commission of an illegitimate act by an O on the territory of one of its'
member States does not automatically cause the liability of this last; on one side the
establishment of a specific obligation of due diligence is required and, on the other, the
effective possibility to exercise such control must be measured. The LC was clear on the
point, excluding the possibility of the extension of the responsibility to the member State
based exclusively on the fact that the illegitimate act, even if not committed by the State, took
place in territories under its' sovereign control.
Often the same agreements contain dispositions excluding the attribution of any sort of
responsibility to the State for acts committed by the O[354]. Even in this case the State will
be liable not for the illicit acts of the organization but in virtue of such general rule evocable by
the third State[355]. The same principle has been applied in the legal practice of the
European Commission on Human Rights[356].
Eminent authors have stressed out, on the other side, that the liability of the member
States could be funded on the general duty to ensure the protection of third parties in relation
to the action of the organization to which they are members. Such an obligation nevertheless
requires a basis.
Such basis can be funded on the same constitutive act of the O. Example of the
prevision of an autonomous cause of responsibility as a sanction for the inaction of the
member States is article 139 of the UN Convention on the Law of the Seas, where at para. 3
is affirmed that the "States 0arties that are members of I6s shall ta(e appropriate measures
to ensure the implementation of this article with respect to such organizations4[357]. Such
provisions are nevertheless rare and do not resolve our question on the existence of such a
general duty of the member States.










C'(C"USI'(=

POLTCAL CONSDERATONS: THE ATTRACTVENESS FOR STATES OF
THE "SHELD OF AN EXCLUSVE RESPONSBLTY OF THE O


The liability of member States of Os is not a topic exclusively of legal character. On the
contrary, very important are as well the political considerations that have been done. Being
States the principal actors on the international stage, the legal and political facets of their
actions are strictly bound together.
t is convenient to commence by taking a glance to the appealing features of the
State's membership in an internationally personified O. This type of cooperation works to the
State's advantage, by granting protection, through the up-mentioned exclusive responsibility
of the O, from any risk of being held responsible for the activities carried out by the O or by
the same State through the O itself[358].
From this perspective the exclusive responsibility of Os appears, therefore, as the
main reason that brings States to endow an O with international legal personality[359].
Furthermore actions through an O enable the State to conduce low cost policies, avoiding
once again individual responsibility.
Different presumptions were therefore advanced in order to legitimate and revaluate
the advantages deriving from the assertion of the principle of exclusive responsibility of Os. t
has, as an example, been affirmed that an extension of the responsibility to the member
States would inevitably undermine the autonomy of the organization itself. Following such
perspective, the raise of consciousness by the State in reference to its' liability for such
unlawful act, would have as a causal consequence, a more penetrating intervention in the
decision-making process[360], or even a reluctance in joining in such forms of international
cooperation. These time-increasing presuppositions have been confirmed by the I?IF
"there is no general rule of international law whereby States members
are, due solely to their membership, liable, concurrently or subsidiarily,
for the obligations of an I6 of which they are members[361] and that
""i#mportant considerations of policy, including support for the credibility
and independent functioning of I6s and for the establishment of new
I6s, militate against the development of a general and comprehensive
rule of liability of member States to third parties for the obligations of
I6s.[362]
n reality a more pervading interference of member States in the O's decision-making
process, consequence of the extension of a concurrent or joint State responsibility, must not
be seen only under such a sullen and grim light. The growing participation of the member
States can even tantamount to a form of positive activism. Among the positive effects,
obtainable through a more pervasive activism of member States, is surely a better internal
control on the organization. The presence of an effective internal control would contribute,
moreover, to the same prevention of the commission of the unlawful act [363], therefore
resolving ab initio the matter.
On the contrary, one of the major consequences of the inapplicability of the principle of
concurrent or joint responsibility to member States, would be the endowment, on a domestic
level, of an immunity both to Os than to member States. This would constitute not only an
insuperable impediment for the injured State or organization to bring the claim in front of a
national jurisdictional organ, but potentially even on an international level[364].
t is a fact that such claim requires the presence of the O in front of the tribunal, which,
even if some times possible, can constitute an insurmountable difficulty in absence of a
jurisdiction ratione personae of this last, like in the case of the CJ[365].
Moreover, the restrictive concept of functional immunity[366], granted to the Os in
order to ensure their independent functioning, "in practice turns out to be a fairly broad and
almost unlimited immunity from the jurisdiction of national courts[367]. Paradigmatic is the
practice, once more, of the UN, which, prima facie, under article 105 of the UN Charter,
"enjoy"s# in the territory of each of its -embers such privileges and immunities as are
necessary for the fulfilment of its purposes[368]. At a closer view such unqualified immunity
de facto is meant as absolute[369].
This appears as well to be the situation for a number of other Os, such as the World
Trade Organization and the Council of Europe[370]. n fact, the Statute of the latter provides
that the ""&#he $ouncil of %urope, representatives of members and the Secretariat shall enjoy
in the territories of its members such privileges and immunities as are reasonably necessary
for the fulfilment of their functions[371]. t is possible to arrive the same conclusions in
reference not only to constitutive acts, but even to subsidiary instruments, such as bilateral
headquarters agreements or multilateral agreements[372]. National Courts, furthermore, have
"regarded such a absolute immunity of I6s as a re!uirement under customary international
law[373].
t must be noted, for the sake of truth, that another trend, limiting such absoluteness is
taking place, sometimes through an assimilation of O and State immunities, other times
through the express exclusion of immunity for certain unlawful acts[374].
t is necessary for the national courts, in the light of such scope, firstly to define the
content of functional immunity. n doing so, the courts should always bear in mind the ratio
pervading the conception of such immunity: "ensuring the proper functioning of such
organisations free from unilateral interference by individual governments[375]. Secondly
there is the necessity to subordinate the same granting of functional immunity to Os to the
availability of "ade!uate alternative redress mechanisms[376] to third parties, as confirmed
by the same CJ and by UN's practice[377]. The existence of alternative solutions as a
condition to grant functional immunity, already appears to be, both among scholars and
judicial organs, as a "healthy development which serves the purpose of securing access to
justice while preserving the independence of foreign States and organizations[378].
The various difficulties that where and will be encountered across the journey to a
reasonable and adequate solution do not, in any case, have to lead undoubtedly nor to the
false conclusion that joint or concurrent responsibility of member States is inconceivable nor
that such principle has irrevocably to be jeopardized.
Eminent scholars have focused from different perspectives on the link existing between
factual autonomy and independence of the organization and its responsibility.
Two are the principle outcomes of the survey on the shield of exclusive responsibility.
On the one side, the presence of a corporate veil encourages growing relationships among
States. On the other, the same veil might as well enliven the member States, due to the
protection granted to the latter from any type of liability, to act through the O, by exercising a
overwhelming control over its decision-making process, with the aim of pursuing personal
goals[379].
6mnia tempus habent[380]. Most of the difficulties encountered in finding a definition
and the field of applicability of the principle of overwhelming and effective control will be finally
overcome only through the contribution and the study of both jurisprudential, State and Os'
practice[381].


F3G see Statute of the nternational Court of Justice, Annexed to the United Nations Charter, adopted on the 26th
June 1945, Article 34.1: " 6nly states may be parties in $ases before the $ourt; Alvarez, J.E., "Misadventures
in Subjecthood, 29th September 2010

[2] Vienna Convention on the Law of Treaties Between States and nternational Organizations or Between
nternational Organizations with Commentaries, open to signature on the 21st of March 1986, art. 2, para. 1,
letter i

[3] Gautier, Philippe, "The Reparation for njuries Case Revisited: The Personality of the European Union, Max
Planck Yearbook of United Nations Law, J.A. Frowein and R. Wolfrum (eds.), Kluwer Law nternational, 2000, pg.
333

[4] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, Sixty-first Session, 4
May-5 June and 6 July-7 August 2009

[5] See Chapter 1.1 on the nternational Legal Personality of nternational Organizations

[6] Kelsen, Hans, "General Theory of Law and State, Russell & Russell (eds.), New York, 1945, pg. 93; Anzilotti,
D., "Corso Di Diritto nternazionale, Cedam (ed.), Padova, Ristampa Anastatica del 1964, pp. 111-112; Sereni,
A. P., "Diritto internazionale, Giuffr (ed.), Milano, 1956, pg. 235; Schwarzenberger, "A Manual Of nternational
Law, V Ed., Stevens And Sons (ed.), London, 1960, pg. 53; Arangio, Ruiz G., "Gli Enti Soggetti
dell'Ordinamento nternazionale, Giuffr (ed.), Milano, 1951, pg. 9; Arangio-Ruiz, G., Margherita, L., and
Arangio-Ruiz, E. Tau, "Soggettivit nel Diritto nternazionale, Digesto delle discipline pubblicistiche, 1999, pg.
303

[7] O'Connell, D.P., "nternational Law, Stevens and Sons (ed.), London, 1970, pg. 81

[8] Keeton, G.W., "The Elementary Principles of Jurisprudence, Pitman & Sons (ed.), London, 1949, pg.168

[9] Klabbers, Jan, "The Concept of Legal Personality, 11 us Gentium 35, 2005, pg. 7; Derham, David, "Theories
of Legal Personality in L. C. Webb (ed.), Legal Personality and Political Pluralism, University of Melbourne
Press, Melbourne, 1958, pg.10-11

[10] Gierke, Otto, "Political Theories of the Middle Age, Thoemmes (ed.), reprint of the 1900 edition, Bristol,
1996 , pg. 67 et seq.

[11] Klabbers, Jan, "The Concept of Legal Personality, supra note 9, at pg. 7

[12] Jolowicz, H.F., "Roman Foundations of Modern Law, Oxford University Press, Oxford, 1957, pg. 127;
Barberis, Julio A., "Nouvelles Questions concernant la Personnalit Juridique nternationale, Recueil des Cours
de l'Acadmie de Droit nternational de La Haye, vol. 179, 1983-, pg. 145 et seq.

[13] CJ Advisory Opinion on the Reparation for njuries Suffered in the Service of the United Nations, 11th April
1949, available in CJ Reports, pg.178
[14] See Chapter 2.2 on the Rules On The Responsibility Of States And Of nternational Organizations

[15] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility of
Member States, nternational Organizations Law Review, vol. 4, afl. 1, 2007; Schermers, Henry G.,and Blokker,
Niels M., "nternational nstitutional Law: Unity Within Diversity, Martinus Nijhoff (ed.), 4th rev. ed., 2003, pg.
1566; Klabbers, Jan, "ntroduction to nternational nstitutional Law, Cambridge University Press, Cambridge,
2002, pp. 55-56; Brownlie, ., "Principles of Public nternational Law, 6th ed., Oxford University Press, Oxford,
2003, pg. 649; Verheoven, Joe, "Las Reconnaissance nternationale dans la Pratique Contemporaine, Pedone
(ed.), Paris, 1975, pg. 214

[16] See Chapter 4.2.2 on the Responsibility Of Both Member States And Third States For The Exercise Of
Direction And Control Over The Commission Of An nternational Wrongful Act By An nternational Organization

[17] CJ Advisory Opinion on the Reparation for njuries Suffered in the Service of the United Nations, 11th April
1949, supra note 13, at pg.175

[18] Katsineris, Steven, "The Murder of Count Bernadotte and The Killing of Peace in Palestine, 3rd February
2008; Statement by General Aage Lundstrom, Chief of Staff, United Nations Truce Supervision and Personal
Representative of Count Bernadotte in Palestine, 17th September 1948

[19] Statement of Mr. Kaeckenbeeck, Representative of Belgium, in the Oral Proceedings relating to the CJ
Reparation Case, pleadings, Oral statements, CJ Reports 1949, pg.96

[20] Gautier, Philippe, "The Reparation for njuries Case Revisited: The Personality of the European Union,
supra note 3, p. 333, at pg.349

[21] CJ Advisory Opinion on the Reparation for njuries Suffered in the Service of the United Nations, 11th April
1949, supra note 13, at pg.13

[22]Brownlie, ., "Principles of Public nternational Law, supra note 15, at pg.649

[23] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents, Bruylant (ed.), Edition de l'Universit de Bruxelles, 1998, pp. 430-431

[24] ECJ, Commission of the European Communities v Council of the European Communities, Case 22/70, 31st
of March 1971, available in Reports of Cases before the Court, 1971, S. 263.

[25] Klabbers, Jan, "The Concept of Legal Personality, supra note 9, at pg. 14

[26] Gautier, Philippe, "The Reparation for njuries Case Revisited: The Personality of the European Union,
supra note 3, at pg. 335 ; see as well Seyersted, Finn, "nternational Personality of ntergovernmental
Organizations ts Scope and its validity Vis--Vis Non-Members. Does the Capacity Really Depend upon the
Constitution?, .J..L., 1964, p.1 at pg. 53

F/HG United Nations Charter, signed on 26th June 1945, in San Francisco, into force on 24th October 1945
[28]
Gautier, Philippe, "The Reparation for njuries Case Revisited: The Personality of the European Union, supra
note 3, at pg. 339

[29] Agreement concerning the establishment of an European Central nland Transport Organisation, 27th
September 1945, section 13, available in UNTS, vol. 5, no. 35; United Nations Convention on the Law of the
Sea, opened for signature at Montego Bay, Jamaica, on the 10th December 1982 and entered into force on the
14th November 1994 of 10th December 1982, article 176

[30] X Documents of the UNCO, San Francisco, 1945, pg. 817, quoted in: "Digest of nternationl Law,
Whiteman M., 13, 1968, pg. 12

[31] Hahn, H., "Euratom : the Conception of an nternational Personality, Harvard Law Review, 6, 1956-7, 1001
et seq; Dupuy, Ren-Jean, " le Droit de Relations entre les Organisations nternationales , Recueil des Cours de
l'Academie de Droit nternational, 1960-, pp. 457-589
[32] UNGA Resolution A/Res/47/10 of 28th October 1992, on the Cooperation between the United Nations and
the Conference on Security and Cooperation in Europe

[33] UN Resolution A/Res/48/5 of the 13th October 1993 granting the OCSE the Status of Observer in the United
Nations

[34] Treaty establishing the European Economic Community (EEC), signed in Rome on 25 March 1957 and
entered into force on 1 January 1958, article 210: "the $ommunity shall have legal personality
[35] Europa.eu Glossary, "Legal Personality of the European Union, available at
http://europa.eu/scadplus/glossary/union_legal_personality_en.htm

[36] Maganza, G., "Reflxions sur le Trait d'Amsterdam; contexte gnral et quelques aspects particuliers,
Annuaire Franais de Droit nternational, vol. 43, 1997, pg. 657 et seq.; Des Nerviens, P., "Les Relations
Extrieures, Revue Trimestrielle de Droit Europeen (Fr), 33, 1997, pg. 807 et seq.

[37] Klabbers, Jan, "Presumptive personality: the European Union in nternational Law, M. Koskenniemi (ed.), in
"nternational Law Aspects of the European Union, Nijhoff publishers, 1998

[38] Vignes, D., "L'Absence de Personalit Juridique de l'Union Europenne : Amsterdam Persiste et Signe,
Liber Amicorum (ed.), Seidl-Hohenverdern, 1998, pg. 187 et seq.; Pliakos, A., "La Nature Juridique de l'Union
Europenne, Revue Trimestrielle de Droit Europeen (Fr), 29, 1993, pg. 211

[39] De Schoutheete, Philippe, and Andoura, Sami, "The Legal Personality of the European Union, EGMONT
Royal nstitute for nternational Relations, Studia Diplomatica vol. LX, 2007 n 1, pg. 1; see also Cloos, J. et al.,
"Le Trait de Maastricht, Bruylant (ed.), 2nd Ed., Bruxelles, 1994, pg. 165 ; Constantinesco, V. et al., "Trait sur
l'Union Europenne, Economica (ed.), Paris, 1995, pg. 89

[40] Gautier, Philippe, "The Reparation for njuries Case Revisited: The Personality of the European Union,
supra note 3, at pg. 348

[41] Vignes, D., "L'Absence de Personalit Juridique de l'Union Europenne : Amsterdam Persiste et Signe,
Liber Amicorum (ed.), Seidl-Hohenverdern, 1998

[42] Gautier, Philippe, "The Reparation for njuries Case Revisited: The Personality of the European Union,
supra note 3, at pg. 350

[43] Treaty of Maastricht, or treaty of the European Union (TEU), signed on the 7th February 1992 and entered
into force on the 1st November 1993

[44] Final Report of European Union Working Group on Legal Personality, Document CONV 205/02, 1st October
2002

[45] Treaty of Lisbon amending the Treaty on European Union and the TEC, signed at Lisbon on the 13th
December 2007, entered into force the 1st December 2009

[46] Declaration n 24 concerning the Legal Personality of the European Union, adopted by the Conference of
the Representatives of the Governments of the Member States of the European Union, annexed to the Lisbon
Final Act, Official Journal of the European Union, C 306/231, 17th December 2007

[47] House of Lords Research Paper 07/80, "the EU Reform Treaty: Amendments to the Treaty on European
Union, House of Commons Library, 22nd November 2007

[48] Treaty establishing the European Union, consolidated Version, 30th March 2010

[49] UK Europe Minister Denis MacShane declaration in: Government White paper, A Constitutional Treaty for
the EU: The British Approach to the European Union ntergovernmental Conference Cm 5934, September 2003

[50] Hoffmeister, Frank, "Litigating against the European Union and ts Member Strates- Who Responds under
the LC's Draft Articles on nternational Responsibility of nternational Organizations?, European Journal of
nternational Law, volume 1 n3, 2010, pg. 724

[51] Hoffmeister, Frank, "Litigating against the European Union and ts Member Strates- Who Responds under
the LC's Draft Articles on nternational Responsibility of nternational Organizations?, supra note 50, at pg. 740

[52] Verheoven, Joe, "La Reconnaissance nternationale dans la Pratique Contemporaine, supra note 15, at
pg. 204 ; Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes
et en Droit de Gents, supra note 23, at pg. 430; Resolution of the D on the Legal Consequences for Member
States of the Non-fulfilment by nternational Organizations of the Obligations towards Third Parties, 1ST
September 1995, Session of Lisbon, art. 1

[53] Klabbers, Jan, "The Concept of Legal Personality, supra note 9, at pg. 2

[54] Alvarez, Jos E., working paper for the "35th Annual Conference on Responsibility of ndividuals, States and
Organizations nternational Organizations: Accountability or Responsibility?, Luncheon Address, Canadian
Council of nternational Law, 27th October 2006

[55] Seidl-Hohenveldern, ., "Die vlkerrechtliche Haftung fr Handlungen nternationaler Organisationen im
Verhltnis zu Nichtmitgliedstaaten, sterreichische Zeitschrift fr ffentliches Recht, vol. X, 1961, p. 497, at pp.
502-505; Stein, T., "Kosovo and the international community: the attribution of possible internationally wrongful
Acts: responsibility of NATO or of its member States, in C. Tomuschat (ed.), Kosovo and the nternational Legal
Community: A Legal Assessment, Kluwer Law nternational, The Hague/London/New York, 2002, p. 181, at pg.
192

[56] Seidl-Hohenveldern, ., "Die vlkerrechtliche Haftung fr Handlungen nternationaler Organisationen im
Verhltnis zu Nichtmitgliedstaaten, supra note 55, p. 497, at pp. 502-505; Stein, T., "Kosovo and the
international community: the attribution of possible internationally wrongful Acts: responsibility of NATO or of its
member States, supra note 55, p. 181, at p. 192.

[57] Klabbers, Jan, "The Concept of Legal Personality, supra note 9, at pg. 2

[58] LC, A/CN.4/532, First Report of Special Rapporteur Giorgio Gaja On the Responsibility of nternational
Organizations, 2003

[59] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility of
Member States, supra note 15, at pg.94

[60] Amerasinghe, C.F., "Principles of the nstitutional Law of nternational Organizations, Cambridge University
Press, Cambridge, 1996, pg.85

[61] Cour d'Arbitrage nternational, Westland Helicopters Limited v. Arab Organization for ndustrialization,
sentence prjudicielle n 38/79, 25 mars 1984, J.D.., 1985, pg. 240

[62] Cour d'Arbitrage nternational, Westland Helicopters Limited v. Arab Organization for ndustrialization, supra
note 61, at pg. 240

[63] Dominic Christian, "Le Tribunal Fdral face la Personnalit Juridique d'une Organisme nternational,
Revue de Droit Suisse, 1989, pp. 527-9

[64] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents, supra note 23, at pg. 433

[65] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility of
Member States, supra note 15, at pg. 92;
[66] Resolution of the D on the Legal Consequences for Member States of the Non-fulfilment by nternational
Organizations of the Obligations towards Third Parties, 1995, supra note 52, art. 2 b

[67] Resolution of the D on the Legal Consequences for Member States of the Non-fulfilment by nternational
Organizations of the Obligations towards Third Parties, 1995, supra note 52, art. 2 b

F;DG Treaty on Principles governing the Activities of States in the Exploration and Use of Outer Space, including
the Moon and other Celestial Bodies, opened to signature the 27th of January 1967 and entered into force the
10th of October 1967, UNGA resolution 2222/66, art. XX.3; Convention on the Privileges and mmunities of the
United Nations, adopted by the United Nations General Assembly the 13th of February 1946, artt. X-X

[69] See Chapter 3.2.1 on the Mixed Agreements Of The European Union

[70] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents, supra note 23, p. 427, at pp. 452-456

[71] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility of
Member States, supra note 15, at pg. 92 ; Klein, Pierre, "La Responsabilit des Organisations nternationales
dans les Ordres Juridiques nternes et en Droit de Gents, supra note 23, at pp. 430-438 ; Cour d'Arbitrage
nternational, Westland Helicopters Limited v. Arab Organization for ndustrialization, supra note 61, at pg. 240

[72] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility of
Member States, supra note 15, at pg. 95

[73] Wellens, K., "Remedies against nternational Organizations, Cambridge University Press, Cambridge,
2002, pg. 45-50; Cahier, P., "The Strengths and Weaknesses of nternational Arbitration nvolving a State as a
Party, in J.D.M. Law (ed.), Contemporary Problems of nternational Arbitration, 1986, pg. 244

[74] See Chapter on the Principle Of The Exclusion Of State Responsibility For Acts Formally Attributed To The
O and Chapter 2.1.4.3 on the Policy Reasons; see also LC Report, A/61/10, Fifty-eighth Session, 1 May-9 June
and 3 July-11 August 2006, pg. 287; LC, A/CN.4/564/add.2, Second Addendum to the Fourth Report Special
Rapporteur Giorgio Gaja on the Responsibility of nternational Organizations, 2006; Resolution of the D on the
Legal Consequences for Member States of the Non-fulfilment by nternational Organizations of the Obligations
towards Third Parties, 1995, supra note 52, art. 5

[75] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility of
Member States, supra note 15, at pg. 96

[76] Judgment of 27th April 1988, Maclaine Watson & Co. Ltd. v. Department of Trade and ndustry; J.H. Rayner
(Mincing Lane) Ltd. v. Department of Trade and ndustry and Others, in nternational Law Reports,vol. 80, pg.
109

[77] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents", supra note 23; Waelbroeck, Michel, "Observations sur le Rapport Prliminaire de R. Higgins
l'D, A..D.., VOL. 66-, 1995, pg. 382

[78] LC, A/CN.4/564/add.2, supra note 74

[79] Digest 3, 4, 7, 1

[80] nternational Chamber of Commerce Court Arbitration, Westland Helicopters V AO, Case 3879/AS, 5th
March 1984, quoted from the English translation published in nternational Law Reports, vol. 80 at pg. 612

[81] nternational Chamber of Commerce Court Arbitration, Westland Helicopters V AO, supra note 80, at pg.
613

[82] Basic Statute of the Arab Organization for ndustrialization, approved and promulgated the 17th August 1975,
Article 23

[83] nternational Chamber of Commerce Court Arbitration, Westland Helicopters V AO, supra note 80, at pg.
614-15

[84] nternational Chamber of Commerce Court Arbitration, Westland Helicopters V AO, supra note 80, at pg.
615

FDIG CJ Contentious Case concerning the Barcelona Traction, Light And Power Company, Limited (Belgium v.
Spain), 5th February 1970, quoted from nternational Law Reports of E. Lauterpacht,C. J. Greenwood, pg. 616;
nternational Chamber of Commerce Court Arbitration, Westland Helicopters V AO, supra note 80, at pg. 616

[86] Court of Justice of Geneva, Case concerning the Award in Westland Helicopters V AO arbitration, 19th July
1988, available in Revue de l'Arbitrage, vol. 18 (1989), p. 515
[87] nternational Chamber of Commerce Court Arbitration, Westland Helicopters V AO, supra note 80, at pg.
643

[88] nternational Chamber of Commerce Court Arbitration, Westland Helicopters V AO, supra note 80, at pg.
643

[89] Court of Justice of Geneva, Case concerning the Award in Westland Helicopters V AO arbitration, supra
note 86, at pg. 658

[90] Paragraph 56 of the Award of 21st July 1991, as quoted by Higgins, R., "The Legal Consequences for
Member States of Non-fulfilment by nternational Organizations of their Obligations towards Third Parties:
Provisional Report, Annuaire de l'D, vol. 66-, 1995, pg. 373,

[91] Federal Supreme Court of Switzerland, Westland Helicopters V AO, Final Award, 28th of June 1993
[92] High Court of England, J.H. Rayner (Mincing Lane) Ltd. v. Department of Trade and ndustry and Others,
judgment of the 24th June 1987, nternational Law Reports, vol. 77, p. 55, at pg.76

[93] High Court of England, J.H. Rayner (Mincing Lane) Ltd. v. Department of Trade and ndustry and Others,
supra note 92, at pp.79-80

[94] High Court of England, Maclaine Watson & Co. Ltd. v. Department of Trade and ndustry Case, Judgment of
the 29th July 1987, available in nternational Law Reports, vol. 80, p. 39, at p. 47

[95] Court of Appeals of England, Maclaine Watson v. Dpt of Trade and ndustry, J.H. Rayner (Mincing Lane) Ltd.
v. Department of Trade and ndustry and Others, supra note 95, at pg. 110

[96] Court of Appeals of England, Maclaine Watson v. Dpt of Trade and ndustry, supra note 95, pp. 172-174

[97] Court of Appeals of England, Maclaine Watson v. Dpt of Trade and ndustry, supra note 95, pp. 141-147

[98] See Chapter 2.1.4.2 on the Conduct of the Member State

[99] House of lords, Australia & New Zealand Banking Group Ltd and Others v. Commonwealth of Australia and
23 Others; Amalgamated Metal Trading Ltd and Others v. Department of Trade and ndustry and Others;
Maclaine Watson & Co. Ltd v. Department of Trade and ndustry; Maclaine Watson & Co. Ltd v. nternational Tin
Council, Judgment of 26 October 1989, opinion of lord Templeman, available in nternational Legal Materials,
vol. 29 (1980), p. 671, at p. 674

[100] Judgment of the English House of Lords, Maclaine Watson & Co. Ltd v. nternational Tin Council, in
nternational Legal Materials, vol. 29 (1980), pg.675

[101] ECJ, Maclaine Watson & Co. Ltd v. Council and Commission of the European Communities, Case C-
241/87, Opinion of Advocate General, available in ECJ Reports, 1990-, p. 1797, at p. 1822 (para. 144)

[102] LC Report, A/CN.4/545, Responsibility of nternational Organizations, Comments and Observations
received from nternational Organizations, Geneva 3rd May-4th June and 5th July-6th August 2004, pp. 29-31 and
Annex; Exchange of Letters between the Director-General of MFO and the Ambassador of the United States to
taly, relating to a claim arising form the crash of an aircraft, 3rd May 1990; Exchange of Letters between Canada
and MFO, dated 4th and 9th November 1999

[103] LC Report, A/CN.4/556, Responsibility of nternational Organizations, Comments and Observations
received from Governments and nternational Organizations, Geneva 2nd- May 3rd June and 4th July-5th August,
Statement of Germany, pg. 65

[104] Statement of taly, A/C.6/60/SR.12, para. 13

[105] LC Report, A/C.6/60/SR.11, Discussion of the 6th Committee, 24th October 2005, Statement of Austria,
para. 54; see Chapter 4.3 on the Dfaut de Vigilance

[106] Statement of Belarus, A/C.6/60/SR.12, para. 52

[107] NTERPOL Letter of January 2006, not yet published

[108] Seidl-Hohenveldern, ., "Die vlkerrechtliche Haftung fr Handlungen nternationaler Organisationen im
Verhltnis zu Nichtmitgliedstaaten, supra note 55, p. 497, at pp. 502-505; Stein, T., "Kosovo and the
international community: the attribution of possible internationally wrongful Acts: responsibility of NATO or of its
member States, supra note 55, p. 181, at pg. 192

[109] Adam, H.-T., "Les Organismes nternationaux Spcialiss, Librairie Gnrale de Droit et de Jurisprudence,
Paris, 1965, pg. 130; Ginther, K., " Die Vlkerrechtliche Verantwortlichkeit nternationaler Organisationen
Gegenber Drittstaaten, Springer-Verlag (ed.), Vienna/New York, 1969, pp. 177-179 and 184; Hoffmann, G.,
"Der Durchgriff auf die Mitgliedstaaten nternationaler Organisationen fr deren Schulden, Neue Juristiche
Wochenschrift, vol. 41, 1988, p. 585, at pg. 586; Pitschas, C., "Die vlkerrechtliche Verantwortlichkeit der
Europischen Gemeinschaft und ihrer Mitgliedstaaten, Dunckler & Humblot (eds.), Berlin, 2001, pp. 92-96;
Sadurska, R. and Chinkin, C.M., "The collapse of the nternational Tin Council: a Case of State responsibility?,
Virginia Journal of nternational Law, vol. 30, 1990, p. 845, at pp. 887- 890; Schermers, Henry G., "Liability of
nternational Organizations, Leiden Journal of nternational Law, vol. 1, 1988, p. 3 at pg. 9; Wenckstern, M., "Die
Haftung der Mitgliedstaaten fr internationale Organisationen, Rabels Zeitschrift fr auslndisches und
internationales Privatrecht, vol. 61, 1997, p. 93, at pp. 108-109; Brownlie, ., "Principles of Public nternational
Law, supra note 13
[110] Hartwig, Matthias, " Die Haftug der Mitgliedstaaten fr nternationale Organisationen, Springer (ed.),
Berlin/Heidelberg, 1993, pp. 290-296; Pellet, A. "L'mputabilit d'Eventuels Actes llicites - Responsabilit de
l'OTAN ou des tats Membres?", in Ch. Tomuschat (ed.), Kosovo and the nternational Community - A Legal
Assesment, Kluwer, The Hague, 2002, p. 193, at pp. 198 and 201; Pernice, ., "Die Haftung internationaler
Organisationen und ihrer Mitarbeiter dargestellt am 'Fall' des internationalen Zinnrates, Archiv des
Vlkerrechts, vol. 26, 1988, p. 406, at pp. 419-420; Ritter, J.-P. "La Protection Diplomatique l'gard d'une
Organisation nternationale, Annuaire Franais de Droit international, vol. 8, 1962, p. 427, at pp. 444-445.

[111] Resolution of the D on the Legal Consequences for Member States of the Non-fulfilment by nternational
Organizations of the Obligations towards Third Parties, 1995, supra note 52
[112] Statement of taly, A/C.6/60/SR.12, para. 13

[113] Statement of taly, A/C.6/60/SR.12, para. 13; LC Report, A/C.6/60/SR.11, supra note 105, para. 54;
Statement of Spain, A/C.6/60/SR.113, para. 53; Statement of Belarus, A/C.6/60/SR.12, para. 52

[114] LC, A/CN.4/564/add.2, supra note 74, para. 93 at pg. 13

[115] LC, A/CN.4/564/add.2, supra note 74, para. 93 at pg. 13

[116] LC, A/CN.4/564/add.2, supra note 74, para. 88 at pg. 11
[117] Herdegen, M., "The nsolvency of nternational Organizations and the Legal Position of Creditors: some
Observations in the Light of the nternational Tin Council Crisis, Netherlands nternational Law Review, vol. 35,
1988, p. 135 at p. 141

[118] LC, A/CN.4/564/add.2, supra note 74, para. 91, pg. 12

[119] Court of Appeals of England, Maclaine Watson v. Dpt of Trade and ndustry, J.H. Rayner (Mincing Lane)
Ltd. v. Department of Trade and ndustry and Others, supra note 95, pg. 172

[120] LC, A/CN.4/564/add.2, supra note 74, para. 91, pg. 12

[121] LC, A/CN.4/564/add.2, supra note 74, para. 91, pg. 12

[122] Seidl-Hohenveldern, ., "Liability of member States for acts or omissions of an international organization, in
S. Schlemmer-Schulte and Ko-Yung Tung (eds.), Liber Amicorum brahim F.. Shihata, The Hague: Kluwer Law
nternational, 2001, p. 727, at pg. 739

[123] Shihata, .F.., "Role of Law in Economic Development: the Legal Problems of nternational Public
Ventures, Revue gyptienne de Droit nternational, vol. 25, 1969, p. 119 at p. 125

[124] LC, A/CN.4/564/add.2, supra note 74, para 92, pg 12

[125] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents, supra note 23, at pp. 509-510

[126] Amerasinghe, C.F., "Liability to Third Parties of Member States of nternational Organizations: Practice,
Principle and Judicial Precedent, nternational and Comparative Law Quarterly, vol. 40 , 1991, p. 259, at p. 280

[127] Higgins, R., "The Legal Consequences for Member States of Non-fulfilment by nternational Organizations
of their Obligations towards Third Parties: Provisional Report, supra note 90, at p. 373, at p. 393.

[128] Statement of Belarus, A/C.6/60/SR.12, para. 52.

[129] LC, A/CN.4/564/add.2, supra note 74, para. 94, pg 13
[130] Higgins, R., "The Legal Consequences for Member States of Non-fulfilment by nternational Organizations
of their Obligations towards Third Parties: Provisional Report, supra note 90, at pg. 419

[131] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4
[132] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4

[133] LC, A/CN.4/532, supra note 58; LC, A/CN/4/541, Second Report of Special Rapporteur Giorgio Gaja on
the Responsibility of nternational Organizations, 2004; LC, A/CN.4/553, Third Report of the Special Rapporteur
Giorgio Gaja on the Responsibility of nternational Organizations, 2005; LC, A/CN.4/564, Fourth Report of the
Special Rapporteur Giorgio Gaja on the Responsibility of nternational Organizations, 2006; LC,
A/CN.4/564/Add.1, First Addendum to the Fourth Report of the Special Rapporteur Giorgio Gaja on the
Responsibility of nternational Organizations, 2006; LC, A/CN.4/564/add.2, supra note 74; LC Report,
A/CN.4/545, supra note 102; LC Report, A/56/10, Draft Articles on Responsibility of States for nternationally
Wrongful Acts, adopted in the Fifty-third Session in 2001; LC Report, A/62/10, Fifty-ninth Session, 7 May-5 June
and 9 July-10 August 2007; LC Report, A/61/10, Fifty-eighth Session, 1 May-9 June and 3 July-11 August 2006;
LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4

[134] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4, article
1

[135] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to Article 2; Vienna Convention on the Law of Treaties Between States and nternational
Organizations or Between nternational Organizations with Commentaries, 1986, supra note 2, art. 2, para. 1,
letter i

[136]LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4, article
1

[137] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4

[138] See Chapter 4 on the Member State's Participation to an Unlawful Act Of The nternational Organization

[139] Alvarez, J.E., "Memo: LC's Draft Articles on the Responsibility of nternational Organizations, 2010, pg. 1

[140] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4

[141] LC Report, A/56/10, supra note 133

[142] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility
of Member States, supra note 15, at pg. 103

[143] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility
of Member States, supra note 15, at pg. 103
[144] CJ Advisory Opinion on the nterpretation of the Agreement of 25 March 1951 between the WHO and
Egypt, 20th December 1980, para. 37

[145] LC Report, A/64/10, supra note 4, Commentary to chapter

[146] LC Report, A/64/10, supra note 4, Commentary to chapter

[147] See Chapter 4.1.1 on the Responsibility for Wrongful Acts Committed by Member State's Organs put under
the Disposal of the Organization

[148] See Chapter 4.1.3 on the Unlawful Acts Committed by the UN Peace-Keeping Forces

[149] LC Report, A/64/10, supra note 4, Commentary to chapter

[150] LC Report, A/64/10, supra note 4, article 4 let b

[151] LC Report, A/56/10, supra note 133, Commentary to article 12, para. 3

[152] LC Report, A/56/10, supra note 133, Commentary to article 12, para. 3

[153] LC Report, A/64/10, supra note 4, article 9 para. 2

[154] LC Report, A/64/10, supra note 4, article 2 letter b

[155] LC Report, A/64/10, supra note 4, Commentary to article 9; see also: Decleva, Matteo, "l Diritto nterno
delle Unioni nternazionali, Cedam (ed.), Padova, 1962; Balladore Pallieri, G., "Le Droit nterne des
Organisations nternationales, Recueil des Cours de l'Acadmie de Droit nternational de La Haye, vol. 127,
1969-, pg. 1

[156] Focsaneanu, L., "Le droit nterne de l'Organisation des Nations Unies, Annuaire Franais de Droit
nternational, vol. 3, 1957, pg. 315; Cahier, P., "Le Droit nterne des Organisations nternationales, Revue
Gnrale de Droit nternational Public, Vol. 67, 1963, pg. 563; Barberis, Julio A., "Nouvelles Questions
concernant la Personnalit Juridique nternationale, Recueil des Cours de l'Acadmie de Droit nternational de
La Haye, vol. 179, 1983-, pg. 145 and pp. 222-225
[157] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 9, para. 5

[158] ECJ, Costa v. ENEL, Case 6/64, 15th July 1964, available in ECJ Reports (1964), p. 1127 at pp. 1158-1159

[159] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to Chapter V, para. 93

[160] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to Chapter V, para. 93

[161] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 39, para. 123

[162] Statement of Denmark, on behalf of the Nordic countries (Denmark, Finland, celand, Norway and
Sweden), in A/C.6/61/SR.13, para. 32; Statement of Belgium, A/C.6/61/SR.14, paras. 41-42; Statement of Spain,
A/C.6/61/SR.14, paras. 52-53; Statement of France A/C.6/61/SR.14, para. 63; Statement of taly,
A/C.6/61/SR.14, para. 66; Statement of the United States of America , A/C.6/61/SR.14, para. 83; Statement of
Switzerland, A/C.6/61/SR.15, para. 5; Statement of Cuba, A/C.6/61/SR.16, para. 13; Statement of Romania,
A/C.6/61/SR.19, para. 60; Statement of Argentina, A/C.6/61/SR.13, para. 49; Statement of the nternational
Monetary Fund, in A/CN.4/582, sect. .U.1; Statement of the Organization for the Prohibition of Chemical
Weapons, A/CN.4/582, sect. .U.1

[163] Statement of Argentina, A/C.6/61/SR.13, para. 49; Statement of Belarus, A/C.6/61/SR.14, para. 100

[164] Statement of Belarus, A/C.6/61/SR.14, para. 100

[165] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4

[166] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 63, para. 1

[167] Statement of the EU Commission, A/C.56/SR.21, para. 18; see also Kuijper, P.J., and Paasivirta, E.
"Further Exploring nternational Responsibility: The EC and the LC's Project on Responsibility of nternational
Organizations, nternational Organizations Law Review, vol. 1, 2004, p. 111 at pg. 127; Talmon, S.,
"Responsibility of nternational Organizations: Does the EC Require Special Treatment, M. Ragazzi (ed.),
nternational Responsibility Today, Essays in memory of Oscar Schachter, Nijoff, Leiden/Boston, 2005, p. 405 at
pp. 412-414

[168] Hoffmeister, Frank, "Litigating against the European Union and ts Member Strates- Who Responds under
the LC's Draft Articles on nternational Responsibility of nternational Organizations?, supra note 50, at pp.739-
740; see also Statement of EU Presidency on the LC Report 2003, New York, 27th October 2003

[169]LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 63, para. 7

[170] Alvarez, J.E., "Misadventures in Subjecthood, supra note 1, at pg. 3

[171] Alvarez, J.E., "Memo: LC's Draft Articles on the Responsibility of nternational Organizations, 2010;
Alvarez, Jos E., working paper for the "35th Annual Conference on Responsibility of ndividuals, States and
Organizations nternational Organizations: Accountability or Responsibility?, supra note 54

[172] LC Report, A/CN.4/556, supra note 103 ,Statement of the German Government, at pg.46

[173] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 31

[174] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 31

[175] Alvarez, J.E., "Misadventures in Subjecthood, supra note 1, at pg. 4

F3H;G Status of MF's Members', Consents to ncrease in Quotas Under the Eleventh General Review, Last
updated: 20th August 2010

[177] LC Report, A/CN.4/609, Responsibility of nternational Organizations, Comments and Observations
received from nternational Organizations, Geneva 4th May-5th June and 6th July-7th August 2009, general
remarks made by the World Health Organization, chapter (A), and general considerations of the nternational
Maritime Organization, chapter (B)

[178] Alter, Karen J., "Agents or Trustees? nternational Courts in Their Political Context, European Journal of
nternational Relations 14 (1) 2008, pp. 33-63

[179] Alvarez, Jos E., working paper for the "35th Annual Conference on Responsibility of ndividuals, States
and Organizations nternational Organizations: Accountability or Responsibility?, supra note 54

[180] Alvarez, Jos E., working paper for the "35th Annual Conference on Responsibility of ndividuals, States
and Organizations nternational Organizations: Accountability or Responsibility?, supra note 54, at pg. 25
[181] Alvarez, J.E., "Misadventures in Subjecthood, supra note 1, at pg. 3

[182] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility
of Member States, supra note 15, pg. 103; LC Report, A/61/10, supra note 74Draft Article art. 28, pg. 283
[183] Annuaire de l'D, vol. 66- (1996), pg. 445

[184] Di Blase, Antonietta, "Sulla Responsabilit nternazionale per Attivit dell'ONU, Rivista di Diritto
internazionale, vol. 57, 1974, pg. 270; Hirsch, M., "the Responsibility of nternational Organizations Toward Third
Parties: Some Basic Principles, Nijhoff (ed.), Dordrecht/London, 1995, pg. 179; Sarooshi, D., "nternational
Organizations and their Exercise of Sovereign Powers, Oxford, Oxford University Press, 2005, pg. 64

[185] ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. reland Case, application no 45036/98,
30 June 2005; European Court of Human Rights, Waite and Kennedy v. Germany, application no 26083/94;
ECtHR, Emilio GASPARN against taly and Belgium, Case no 10750/03, 12th May 2009

[186] European Court of Human Rights, Waite and Kennedy v. Germany Case, application no 26083/94, 18th
February 1999
[187] Convention for the Establishment of a European Space Agency, approved by the Conference of
Plenipotentiaries on the 30th May 1975 and entered into force on 30th October 1980

[188] European Court of Human Rights, Waite and Kennedy v. Germany Case, supra note 186

[189] European Court of Human Rights, Waite and Kennedy v. Germany Case, supra note 186

[190] European Court of Human Rights, Waite and Kennedy v. Germany Case, supra note 186

[191] ESA Staff Regulations 33 to 41, annexed to 1976 Statute, Chapter V

[192] ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. reland Case, supra note 185

[193] UNSC resolution S/Res/820 of the 17th of April 1993, para 24
F31:G European Convention on Human Rights, signed the 4th November 1950 in Rome
F31IG European Convention on Human Rights on the Enforcement of certain Rights and Freedoms not included
in Section of the Convention, First Protocol, signed in Paris the 20th March 1952
[196] ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. reland Case, supra note 185, para.
154

[197] Schorkopf, Frank, " The European Court of Human Rights' Judgment in the Case of Bosphorus Hava
Yollari Turizm v. reland, German Law Journal no. 09, 2006, pg. 1260

[198] Council Regulation (EEC) No 990/93 concerning trade between the European Economic Community and
the Federal Republic of Yugoslavia (Serbia and Montenegro), adopted on the 26th April 1993

[199]ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. reland Case, supra note 185, para. 143

[200] Hoffmeister, Frank, "Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirket v. reland. App. No.
45036/98, The American Journal of nternational Law, Vol. 100, 2006, pp.442-449

[201] ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. reland Case, supra note 185, para.
148

[202] ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. reland Case, supra note 185, para.
155
[203] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4

[204] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 60, para.1

[205] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 60, para.7

[206] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 60, para.2

[207] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 60, para.7

[208] Brownlie, ., "The Responsibility of States for the Acts of nternational Organizations, M. Ragazzi (ed.),
nternational Responsibility Today. Essays in memory of Oscar Schachter, Leiden/Boston: Nijhoff, 2005, p. 355 at
pg. 361

[209] Di Blase, Antonietta "Sulla Responsabilit nternazionale per Attivit dell'ONU, Rivista di Diritto
nternazionale, vol. 57, 1974, p. 270 at pp. 275-276; Sarooshi, D., "nternational Organizations and their Exercise
of Sovereign Powers, Oxford University Press, Oxford, 2005, pg. 64
[210] Resolution of the D on the Legal Consequences for Member States of the Non-fulfilment by nternational
Organizations of the Obligations towards Third Parties, 1995, supra note 52, Preamble
[211] Resolution of the D on the Legal Consequences for Member States of the Non-fulfilment by nternational
Organizations of the Obligations towards Third Parties, 1995, supra note 52, Art. 4 letter A
[212]
Dupuy, Ren-Jean, "L'Application des Rgles du Droit nternational Gnral des Traites aux Accords Conclus
par les Organisations nternationales, supra note 213, at pp. 214-415
[213]
Dupuy, Ren-Jean, "L'Application des Rgles du Droit nternational Gnral des Traites aux Accords Conclus
par les Organisations nternationales, Rapport Provisoire et Rapport Dfinitif), A..D.., vol.55, 1973, pp. 312-312
[214]
Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et en
Droit de Gents, supra note 23, at pg. 440
[215]
Observations formules par J. Salmon, A..D..,1973, vol.55, pg.337; J.Zourek, ibid., pg. 342 ; F. Seyersted, ibid,
pg. 353 and pg. 405

[216] Sixth Report of Reporter Paul Reuter to the nternational Law Commission on the proposed Art.36 bis of
the Vienna Convention on the Law of Treaties between States and nternational Organizations, available in
A.C.D.., vol. - first part, 1977, pg. 137

[217] Report of the nternational Law Commission on the Vienna Convention on the Law of Treaties between
States and nternational Organizations, Travaux de la Trentime Session, available at A.C.D.., 1978, vol. ,
Second Part, Commentary on article 36 bis, pg. 150; LC report, A/CN.4/SR.1525, Extrait de l'Annuaire de la
Commission du droit international 1978, vol. , observations of M. Ouchakov
[218]
Treaty establishing the European Economic Community (EEC), signed in Rome on the 25th March 1957 and
entered into force on the 1st January 1958, art. 228
[219]
Manin, Philippe, "The European Communities and the Vienna Convention on the Law of Treaties between States
and nternational Organizations or Between nternational Organizations, Common Market Law Report, 1987, pg.
470
[220] Vienna Convention on the Law of Treaties Between States and nternational Organizations or Between
nternational Organizations,1986, supra note 2, art. 36 bis
[221] LC Commentary to the Draft articles on the Law of Treaties between States and nternational
Organizations or between nternational Organizations with Commentaries, Thirty-fourth Session, 1982, Yearbook
of the nternational Law Commission, 1982, vol. , Part Two
[222] Commentary to article 36 bis of the Draft Articles on the Law of Treaties between States and Os or
between Os with Commentaries, supra note 221

[223] Manin, Philippe, "The European Communities and the Vienna Convention on the Law of Treaties between
States and nternational Organizations or Between nternational Organizations, supra note 219, at pg. 471;
Gaja, Giorgio, "A new Vienna Convention on Treaties between States and nternational Organizations or
between nternational Organizations: a Critical Commentary, British Yearbook of nternational Law, 1987,
pg.264
[224]
Vienna Convention on the Law of Treaties Between States and nternational Organizations or Between
nternational Organizations, 1986, supra note 2, art.74, para. 3

[225] Treaty of Maastricht, or treaty of the European Union (TEU), supra note 43

[226] Treaty of Athens amending the Treaty on European Union and the TEC, signed on the 16th April 2003

F//HG Ganshof van der Meersch, Walter, " l'Ordre Juridique des Communauts Europennes et le Droit
nternational, Recueil des Cours de l'Academie de Droit nternational, 1975-V, vol. 148, pp. 96-97
[228]
Hahn, Michal J. et Schuster, Gunnar, "Le Droit des Etats Membres de se Prvaloir en Justice d'un Accord Liant
la Communaut , Revue Gnrale de Droit nternational Public, 1995, pg. 337
[229]
ECJ, Hauptzollamt Mainz v C.A. Kupferberg & Cie KG a.A, Case 104/81, 26th October 1982
[230] Treaty establishing the European Economic Community (EEC), signed in Rome on the 25th March 1957
and entered into force on the 1st January 1958, art. 5

[231] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents, supra note 23, at pg. 448
[232]
Zuleeg, Manfred, "La Rpartition des Comptences entre la Communaut et ses Etats Membres, in La
Communaut et ses Etats Membres, Actes du 6 colloque de l'nstitut d'Etudes Juridiques Europennes sur les
Communauts Europennes, Lige, Janvier 1973, Lige/La Haye, Facult de droit ULg/Nijhoff, 1973, pg. 50 ;
Held, Charles-Edouard, "Les Accords nternationaux Conclus par la CEE, Thse de la Facult de Droit de
l'Universit de Lausanne, Saberlin & Pfeiffer (eds.), Vevey, 1977, pg.183
[233] Hartwig, Matthias, "Die Haftug der Mitgliedstaaten fr nternationale Organisationen, Springer (ed.),
Berlin/Heidelberg, 1993, pg.165
[234]
Manin, Philippe, "L'article 228 para. 2 du trait CEE, in Etudes de Droit des Communauts Europennes
Mlanges offerts Pierre-Henri Teitgen, Pedone (ed.), Paris, 1984, pg. 301
[235]
Jacot-Guillarmod, Olivier, "Droit Communautaire et Droit nternational Public Etude des Sources nternationales
de l'Ordre Juridique des Communauts Europennes, Librairie de l'Universit/Georg et Cie, Genve, 1979,
pg.79
[236] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents, supra note 23, at pg. 450 ; see also Giardina, Andrea, "Commentaries sur l'ntervention de P.
Pescatore, in Les Relations Extrieures de la Communaut Europenne Unifie, Actes du 3e Colloque sur la
Fusion des Communauts, Lige, Octobre 1967, nstitut d'Etudes Juridiques Europennes, Lige, 1969, pg.
134
[237]
ECJ, French Republic v Commission of the European Communities, Case C-327/91, 9th August 1994, available
in Reports of Cases before the Court of Justice and the Court of First nstance (1994), pp. -364
[238] ECJ, French Republic v Commission of the European Communities, Case C-327/91, 9th August 1994,
para. 24-25

[239] LC Report, A/CN.4/556,supra note 103, Declaration of Germany on article 300 para. of the TEC, pg. 50
[240] ECJ, French Republic v Commission of the European Communities, Case C-327/91, 9th August 1994, pp.
-364

[241] Schmalenbach, K. "Die Haftung nternationaler Organisationen, Peter Lang (ed.), Frankfurt am Main,
2004, pp. 556-564 and 573-575; See also LC Report, A/CN.4/556,supra note 103, pp. 51-53
[242] CJEC, Commission of the European Communities v Council of the European Communities concerning the
European Agreement on Road Transportation, Case 22/70, 31st of March 1971, available in Reports of Cases
before the Court, 1971

[243] CJEC, Commission of the European Communities v Council of the European Communities concerning the
European Agreement on Road Transportation, supra note 242, para. 14

[244] CJEC, Commission of the European Communities v Council of the European Communities concerning the
European Agreement on Road Transportation, supra note 242, para. 16

[245] CJEC, Commission of the European Communities v Council of the European Communities concerning the
European Agreement on Road Transportation, supra note 242, para. 17

[246] CJEC, Commission of the European Communities v Council of the European Communities concerning the
European Agreement on Road Transportation, supra note 242, para. 21

[247] CJEC, Commission of the European Communities v Council of the European Communities concerning the
European Agreement on Road Transportation, supra note 242, para. 31

[248] Louis, Jean-Victor et Steenbergen, Jacques, "La Repartition des Competences entre les Communauts
Europennes et leurs Etats Membres en Matire de Relations nternationals, Revue Belge de Droit
nternational, 1983, pg. 360
[249] Cremona, Marise, "The Doctrine of Exclusivity and the Position of Mixed Agreements in The External
Relations Of The EC, Oxford Journal of Legal Studies, 1982, pp. 411-412

[250] General Agreement on Tariffs and Trades, concluded the 15th April 1994 and entered into force the 1st
January 1995

[251] Hoffmeister, Frank, "Litigating against the European Union and ts Member Strates- Who Responds under
the LC's Draft Articles on nternational Responsibility of nternational Organizations?, supra note 50, at pg. 724
[252]
Reuter, Paul, "La Confrence de Vienne sur les Traits des Organisations nternationaux et la Scurit des
Engagements Conventionnelles, in Liber Amicorum Pierre Pescatore, Baden-Baden (ed.), Nomos, 1987, pp.
551-2 ; Gaja, Giorgio, "The EC's Rights and Obligations under Mixed Agreements, in O'Keefe, David et
Schermers, Henry G. (Eds.), Mixed Agreements, Deventer, Kluwer, 1983, pg.135
[253]
Kovar, Robert, "La Participation des Communautes Europennes aux Conventions Multilatrales, Annuaire
Franais de Droit nternational, volume 21, 1975, pg. 916
[254]
Convention for the Prevention of Marine Pollution from Land-based Sources and Annexes, concluded at Paris on
the 4th June 1974, amended by the Protocol of 26th March 1986 ; see also Kovar, Robert, "La Participation des
Communautes Europennes aux Conventions Multilatrales", supra note 254, at pg. 916
[255]
Gaja, Giorgio, "The EC's Rights and Obligations under Mixed Agreements, supra note 252, at pg.137; Louis,
Jean-Victor et Steenbergen, Jacques, "La Repartition des Competences entre les Communauts Europennes
et leurs Etats Membres en Matire de Relations nternationals, supra note 248, at pg. 368 ; Petersmann, Ernst-
Ulrich, "Participation of the European Communities in the GATT : nternational law and community law aspects,
in Schermers, Henry G. et O'Keefe, David (Eds.), Deventer, Kluwer, 1983, p. 174, at pg. 189 ; Groux, Jean et
Manin, Philippe, "Les Communauts Europennes dans l'Ordre nternational, Office des Publications Officielles
des Communauts Europennes, Bruxelles-Luxembourg, 1984, pg. 150

[256] Steenbergen, Jacques, "the Status of GATT in Community Law, Journal of World Trade Law, London,
1981, pg. 344; Petersmann, Ernst-Ulrich, "Participation of the European Communities in the GATT : nternational
law and community law aspects, supra note 256, at pg. 174
[257] Gaja, Giorgio, "The EC's Rights and Obligations under Mixed Agreements, supra note 252, at pg.140
[258]
Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et en
Droit de Gents, supra note 23, at pg. 456
[259]
Gaja, Giorgio, "The EC's Rights and Obligations under Mixed Agreements, supra note 252, at pg.140

[260] Council Decision on the Ratification by the EC of the Agreement for the mplementing of the Provisions of
the United Nations Convention on the Law of the Sea of the 10th December 1982 relating to the Conservation
and Management of Straddling Stocks and Highly Migratory Fish Stocks, adopted on the 8th June 1998

[261]
Simmonds, Kenneth R., "The EC and the New Law of the Sea, Recueil des Cours de l'Academie de Droit
nternational, vol. 218 1989-V , pg. 108 et s.; Simmonds, Kenneth R., "The Community's Participation in the
United Nations Law of the Sea Convention, in Schermers, Henry G. et O'Keefe, David (Eds.), Essays in
European Law and ntegration, Deventer, Kluwer, 1982, pp. 188-189; Gaja, Giorgio, "The European
Community's Participation in the Law of the Sea Convention: Some ncoherencies in a Compromise Solution,
rish Yearbook of nternational Law, 1980-1, pg. 113
[262]
United Nations Convention on the Law of the Sea, 1982, supra note 29, Annex X, Art. 5 para. 1

[263] United Nations Convention on the Law of the Sea, 1982, supra note 29, , Annex X to the 1982, Art. 6, para
2

[264] United Nations Agreement for the mplementation of the Provisions of the United Nations Convention on
the Law of the Sea of the 10th December 1982 relating to the Conservation and Management of Straddling Fish
Stocks and Highly Migratory Fish Stocks, signed
the 8th September 1995, entered into force the 11th December 2001

[265] Vienna Convention for the Protection of the Ozone Layer, signed the 22nd march 1985 and entered into
force on the 14th October 1988, Art. 13 para. 2; Convention sur les Etudes d'mpact Environnemental dans un
Contexte Transfrontalier, signe Espoo le 25 Fvrier 1991, article 17, texte in Y..E.L., 1991, pg. 697;
Convention sur la Protection et l'Utilisation des Cours d'Eau et des Lac nternationaux, signe Helsinki le 17
mars 1992, doc. E/ECE/1267, texte in Y..E.L., 1992, pg. 703; Convention sur les Effets Transfrontires des
Accidents ndustriel, signe Helsinki le 17 mars 1992, article 29, texte in Y..E.L., 1992, pg. 722

[266] Resolution of the D on the Legal Consequences for Member States of the Non-fulfilment by nternational
Organizations of the Obligations towards Third Parties, 1995, supra note 52, Art. 5; Report of R. Higgins to the
D, in 66- Yearbook of the nstitute de Droit nternational, 1995. pg. 372-420

[267] Braud, Philippe, " Recherches sur l'Etat Tiers en Droit nternational Public , R.G.D..P., 1968, pp. 40-41

[268] Geiser, Hans Jorg, "Les Effets des Accords Conclus par les Organisations nternationales : Etude en Droit
des Traits des Organisations nternationales la Lumire de la Convention de Vienne de 1969 , H. Lang (ed.),
Berne, 1977, pp. 188 and 177

[269] Geiser, Hans Jorg, "Les Effets des Accords Conclus par les Organisations nternationales : Etude en Droit
des Traits des Organisations nternationales la Lumire de la Convention de Vienne de 1969 , supra note
268, at pg.186

[270] Seyersted, Finn, "Applicable Law in Relations between ntergovernmental Organizations and Private
Parties, Recueil des Cours de l'Academie de Droit nternational, vol. 2 1967-, pg. 122 and pg. 458; Klein,
Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et en Droit de
Gents, supra note 23, at pg. 462

[271] Seyersted, Finn, "nternational Personality of ntergovernmental Organizations ts Scope and its validity
Vis--Vis Non-Members. Does the Capacity Really Depend upon the Constitution?, supra note 26, at, pg.36
[272]
Amerasinghe, C.F., "Principles of the nstitutional Law of nternational Organizations, supra note 60, at pg. 262;
Accord entre EUROCONTROL et la Belgique, signs Bruxelles le 8 septembre 1970, available in R.T.N.U.,
vol.830, pg. 45 ; Accord entre EUROCONTROL et le Royaume-Uni, signs Bruxelles le 8 septembre 1970,
available in R.T.N.U., vol. 834, pg.110; Accord entre l'ONU et le Gouvernement Tanganykais concernent la
Fourniture d'une Assistance Technique au Titre du Programme OPEX, en application de l'Accord du 1er juin
1962, sign a Dar Es-Salam le 31 juillet 1963 et New York le 30 septembre 1963, available in R.T.N.U., vol
480, pg. 15

[273] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents, supra note 23, at pg. 464

[274] Court of Appeals of England, Maclaine Watson v. Dpt of Trade and ndustry, J.H. Rayner (Mincing Lane)
Ltd. v. Department of Trade and ndustry and Others, supra note 95, at pg. 110
[275]
Court of Appeals of England, Maclaine Watson v. Dpt of Trade and ndustry, Judgement of the 27 April 1988,
words of judge Gibson L.J., .L.R., vol. 89, pg.178
[276]
Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et en
Droit de Gents, supra note 23, at pg. 466
[277] David, Eric, "Droit des Organisations nternationales, P.U.B. (ed.), Bruxelles, 1996-97, pg. 313-314
[278] Amrallah, Borhan, "The nternational Responsibility of the United Nations for Activities carried out by U.N.
Peace-keeping Forces, Revue gyptienne de Droit nternational, Volume 32, 1976, pg. 68
[279]
Condorelli, Luigi, "Le Statut des Forces de l'ONU et le Droit nternational Humanitaire , Rivista di Diritto
nternazionale, 1995, pg. 897

[280] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4
[281] LC Report, A/56/10, supra note 133, Commentary to article 4

[282] LC Report, A/56/10, supra note 133, Commentary to article 4

[283] CJ Advisory Opinion on the Applicability of Article V, Section 22, of the Convention on the Privileges and
mmunities of the UN, 15 December 1989, para. 47; see also CJ Advisory Opinion on the Reparation for njuries
Suffered in the Service of the United Nations, 11th April 1949, pg. 177

[284] CJ Advisory Opinion on the Difference Relating to mmunity from Legal Process of a Special Rapporteur of
the Commission on Human Rights, 29 April 1999, para. 66

[285] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 5, para. 60

[286] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 5, para. 60

[287] Swiss Federal Council decision VPB 61.75, of the 30 October 1996
[288] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 5, para. 61

[289] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 6, para. 62

[290] Model Contribution Agreement of the United Nations, A/50/995, Annex, art. 9; Model Contribution
Agreement of the United Nations,A/51/967, Annex, art. 9

[291] See Chapter 4.1.2 on the Unlawful Acts Committed by the UN Peace-Keeping Forces; see also Chapter
4.2.2 on the Responsibility of both Member States and Third States for the Exercise of Direction and Control
over the Commission of an nternational Wrongful Act By an nternational Organization
[292] CJ Advisory Opinion on Certain Expenses of the United Nations, 20th of July 1962, para. 168

[293] LC Report, A/56/10, supra note 133, Commentary to art. 7, para. 8

[294] LC Report, A/CN.4/545, supra note 102, pg.27
[295] District Court of the Hague Judgment in the incidental proceedings, Association of Citizens Mothers of
Srebrenica vs the State of the Netherlands and the United Nations, Case no. 295247, 10th July 2008

[296] LC Report, A/CN.4/545, supra note 102; Letter by the United Nations Legal Counsel to the Director of the
Codification Division, 3rd February 2004, in A/CN.4/545, sect. .G
[297] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4,
Commentary to article 6, para. 65
[298]
Exchange of Letter between the Director of the Field Administration and Logistics Division of the Department of
Peacekeeping Operations of the UN and the Permanent Representative of Belgium to the UN, 25th June 1998,
unpublished, see LC Report, A/64/10

[299] Amrallah, Borhan, "the nternational Responsibility of the United Nations for Activities carried out by U.N.
Peace-keeping Forces, supra note 278, at pg.57, 62-63 and 73-9; Ritter, J.-P. "La Protection Diplomatique
l'gard d'une Organisation nternationale, Annuaire Franais de Droit international, vol. 8, 1962, pp. 427-442;
Simmonds, R., "Legal Problems Arising from the United Nations Military Operations, Nijoff (ed.), the Hague,
1968, pg. 229; Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques
nternes et en Droit de Gents, supra note 23, at pp. 379-380; Hirsch, M., "the Responsibility of nternational
Organizations Toward Third Parties: Some Basic Principles, supra note 184, at pp. 64-67; Gonzles, Prez M.,
"Organisations nternationales et le Droit de la Responsabilit ", Revue Gnrale de Droit nternational Public,
vol. 99, 1988, pp. 63-83

[300] Bothe, Michael, "Streitkrfte internationaler Organisationen", Max Plck nstitut fr Auslndisches
ffentliches Recht und Vlkerrecht, Carl Heymans Verlag, KG Kln/Berlin, 1968 , pg. 87

[301] Administrative and Budgetary Aspects of the financing of the United Nations Peacekeeping Operations:
Financing of the United Nations Peacekeeping Operations, Report of the Secretary General , UN Doc. A/51/389,
20 September 1996, paras. 17-18, pg. 6

[302] Administrative and Budgetary Aspects of the financing of the United Nations Peacekeeping Operations:
Financing of the United Nations Peacekeeping Operations, supra note 301, paras. 17-18, pg. 6

[303] ECtHR Grand Chamber Decision, Agim Behrami and Bekir Behrami
adgainst France, Application No. 71412/01, 2nd May 2007

[304] ECtHR Grand Chamber Decision, Agim Behrami and Bekir Behrami
against France, supra note 303
F50IG European Convention on Human Rights, supra note 194

[306] ECtHR Grand Chamber Decision, Saramati v. France, Germany And Norway, Application No. 78166/01,
2nd May 2007, para. 64
[307]
ECtHR Grand Chamber Decision, Agim Behrami and Bekir Behrami
against France, supra note 303; ECtHR Grand Chamber Decision, Saramati v. France, Germany And Norway,
supra note 305, at para. 60

[308] Klein, Pierre, "Responsabilit pour les Faits commis dans le Cadre d'Oprations de Paix et tendue du
Pouvoir de Contrle de la Cour e
Europenne des Droits de l'Homme: Quelques Considrations Critiques sur l'Arrt Behrami et Saramati,
Annuaire Franais de Droit nternational, vol. 53, 2007, pp.43-55 ; Lagrange, Ph., "Responsabilit des Etats pour
Actes accomplis en Application du Chapitre V de la Charte des Nations Unies, Revue Gnrale de Droit
nternational Public, vol. 112, 2008 , pp.85-95; Larsen, K.M., "Attribution of Conduct in Peace Operations: The
'Ultimate Authority and Control' Test, European Journal of nternational Law, vol. 19, 2008, p. 509 at pp. 521-
522 ; Papangelopoulou, Elena, "ntroductory Note to European Court of Human Rights (ECHR) Grand Chamber:
Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Sirketi V. reland, nternational Legal Materials Vol. 45, No. 1,
January 2006, pg. 133 ; Milanovic, M., and Papic, T., "As Bad as t Gets: The European Court of Human Rights
Behrami and Saramati Decision and General nternational Law, nternational and Comparative Law Quarterly,
vol. 58, 2009, pg. 267 and pp. 283-286

[309] Military Technical Agreement between the Security Forces and Serbia, signed and entered into force the 9th
of June 1999

[310] UN doc. S/Res/1244 (1999) on the deployment in Kosovo, adopted by the Security Council at its 4011th
meeting, on 10th June 1999, Annex 2, point 4
[311] CJ Advisory Opinion on the Reparation for njuries Suffered in the Service of the United Nations, 11th April
1949, supra note 13, at pg.175

[312] European Commission For Democracy Through Law Strasbourg, 8TH October 2004, Opinion no. 280 /
2004 CDL-D (2004)004rev, para. 14
[313] LC Report, A/64/10, Draft Articles on the Responsibility of nternational Organizations, supra note 4
[314]
[315] European Commission For Democracy Through Law Strasbourg, supra note 312, at para. 14
[316]
[317] Sossai, Mirko, "Accesso alla Corte Europea dei Diritti dell'Uomo per le Violazioni compiute dalle Forze
Armate degli Stati contraenti all'Estero, 2009, pg. 215

[318] Johnson, D. H. N., "The Case of the Monetary Gold Removed from Rome in 1943, nternational and
Comparative Law Quarterly, 4, 1955, pp. 93-115
[319] Brownlie, , "The Responsibility of States for the Acts of Os, in M. Ragazzi (ed.), nternational
Responsibility Today. Essays in memory of Oscar Schachter, Leiden/Boston: Nijhoff, 2005, pg. 361, see also pg.
355 et seq.
[320] ECtHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. reland, application no 45036/98, 30
June 2005

[321] See Chapter 4.3 on The Dfaut de Vigilance
[322]
[323] LC Report, A/61/10, supra note 74pg. 279

[324] Cfr. Chapter 2.1 Concurrent or Exclusive Responsibility

[325] LC, A/CN.4/564/add.2, supra note 74, art. 29

[326] LC Report, A/62/10, supra note 133

[327] see Chapter 4.2.1 on the Responsibility of Member States for the Abuse of Legal Personality of Os at the
Decision-Making Level

[328] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility
of Member States, supra note 15, at pg. 119; see also D'Aspremont, J., "Contemporary nternational
Rulemaking and the Public Character of nternational Law, NYU Global Law Working Paper, 08/06, & nstitute
for nternational Law and Justice Working Paper, 2006/12

[329] Wellens, K., "Remedies against nternational Organizations, supra note 73, at pg. 44; D'Aspremont, Jean,
"Abuse of the Legal Personality of nternational Organizations and the Responsibility of Member States, supra
note 15, at pg.101

[330] Schermers, Henry G., "Liability of nternational Organizations, supra note 109, at pp. 7-9; Pescatore,
Pierre, "Les Relations Extrieures des Communauts Europennes (Contribution a la Doctrine de la
Personnalit des Organisations nternationales), Recueil des Cours de l'Academie de Droit nternational,
vol.103, 1961-, pp. 224-225

[331] Glavinis, Panayotis, "Les Litiges Relatifs aux Contrats passs entre Organisations nternationales et
Personnes Prives, L.G.D.J. (ed.), Paris, 1990, pg.55 ; Klein, Pierre, "La Responsabilit des Organisations
nternationales dans les Ordres Juridiques nternes et en Droit de Gents, supra note 23, at pg. 485

[332] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility
of Member States, supra note 15, at pg. 103; LC Report, A/61/10, supra note 74, Draft Article art. 28, at pg. 283

[333] See Chapter 2.2 on the Responsibility of Member States Arising out of the Establishment of an
nternational Organization (The Abuse of Legal Personality at the Level of its Creation)

[334] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility
of Member States, supra note 15, at pg. 103

[335] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility
of Member States, supra note 15, at pg. 117

[336] LC Report, A/56/10, supra note 133, Commentary of art. 8

[337] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility
of Member States, supra note 15, at pg. 120

[338] LC, A/CN.4/564/Add.1, supra note 133, at para. 5; D'Aspremont, Jean, "Abuse of the Legal Personality of
nternational Organizations and the Responsibility of Member States, supra note 15, at pg. 103
[339] http://www.un.org/Docs/unsc/unsc_members.html

[340] Status of MF's Members', Consents to ncrease in Quotas Under the Eleventh General Review, Last
updated: 20th August 2010

[341] nternational Labour Organization Administrative Tribunal, Judgement on the Dismissal of the Director-
General of the OPCW, Case n 2096, 2002

[342] Statement to the Press by H.E. Judge Rosalyn Higgins, President of the nternational Court of Justice on
the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and
Herzegovina v. Serbia and Montenegro), 26th February 2007

[343] CJ Contentious Case concerning The Gabcikovo-Nagymaros Project (Hungary v. Slovakia), 25th
September 1997, para. 79

[344] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents, supra note 23, at pg. 433

[345] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents, supra note 23, at pg.469
[346] LC Report, A/C.6/60/SR.11, Discussion of the 6th Committee, 24th October 2005, para. 53

[347] Court of Appeals of England, Maclaine Watson v. Dpt of Trade and ndustry, J.H. Rayner (Mincing Lane)
Ltd. v. Department of Trade and ndustry and Others, supra note 95, at pg. 46

[348] LC, A/CN/4/541, Second Report of Special Rapporteur Giorgio Gaja on the Responsibility of nternational
Organizations, supra note 133, at 6-7

[349] ECtHR, Matthews v. UK, Case number 24833/94, Rec. 1999-, 18th February 1999, paras. 31-35;
European Court of First nstance, Ahmed Ali Yusuf and Al Barakaat nternational Foundation v Council of the
European Union and Commission of the European Communities, Case T-306/01, 21st September 2005, para.
198; European Court of First nstance, Yassin Abdullah Kadi v Council of the European Union and Commission
of the European Communities, Case T-315/01, 21st September 2005, paras. 156-160

[350] LC Report, A/56/10, supra note 133, Commentary to art. 17

[351] LC, A/CN.4/564/Add.1, First Addendum to the Fourth Report of the Special Rapporteur Giorgio Gaja on
the Responsibility of nternational Organizations, 2006, para. 5; D'Aspremont, Jean, "Abuse of the Legal
Personality of nternational Organizations and the Responsibility of Member States, supra note 15, at pg. 103

[352] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents, supra note 23, at pg.470

[353] Permanent Court of Arbitration, the sland of Palmas Case, United States of America v. Netherlands, 4th of
April 1928
[354] Accord entre la Suisse et l'OMS concernant le Statut Juridique de l'OMS, approuv par l'Assemble
Mondiale de la Sant le 17 Juillet 1948 et par le Conseil Fdral Suisse le 21 aot 1948, available in R.T.N.U.,
vol. 26, pg. 332 ; Accord entre le Burundi et l'OMM relatif au Bureau Rgional de l'OMM pour l'Afrique dans la
Rpublique du Burundi, sign Genve le 1er Octobre 1980, art.10, available in R.T.N.U., vol. 1201, pg.165

[355] Klein, Pierre, "La Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et
en Droit de Gents, supra note 23, at pg. 471 ; see also Seyersted, Finn, "nternational Personality of
ntergovernmental Organizations ts Scope and its validity Vis--Vis Non-Members. Does the Capacity Really
Depend upon the Constitution?, supra note 26, at, pg.246; Amrallah, Borhan, "The nternational Responsibility
of the United Nations for Activities carried out by U.N. Peace-keeping Forces, supra note 278, at pg. 68

[356] European Commission on Human Rights, Case X v. RFA, n 235/56, 10th of June 1958, available in
A.C.E.D.H., VOL. 2, 1958-59, pp. 295-299
[357] United Nations Convention on the Law of the Sea, 1982, supra note 29, , Article 139 para. 3; see also
Gralczyk, Wojciech J., "Responsibility of States for Activities carried out in the Sea-bed Area, Thesaurus
Acroasium, Thessaloniki, 1993, pg. 103

[358] Report of the Committee on the Accountability of nternational Organizations of the nternational Law
Association of the Seventy-first Conference, Berlin, 16th-24th August 2004, pg. 227; D'Aspremont, Jean, "Abuse
of the Legal Personality of nternational Organizations and the Responsibility of Member States, supra note 15,
at pg. 106-7

[359] LC, A/CN.4/564/add.2, supra note 74, paras. 9-10

[360] LC, A/CN.4/564/add.2, supra note 74, para. 13; Report of R. Higgins to the D, in 66- Yearbook of the
nstitute de Droit nternational, 1995, pg.419; First Report of the nternational Law Association Committee on
Accountability of nternational Organizations presented to the 68th Conference of the LA in Taipei, 24th-30th May
1998, available in LA Report of the 68th Conference, pg. 602; Wellens, K., "Remedies against nternational
Organizations, supra note 73, at pg. 25

[361] Resolution of the D on the Legal Consequences for Member States of the Non-fulfilment by nternational
Organizations of the Obligations towards Third Parties, 1995, supra note 52, art. 6 a

[362] Resolution of the D on the Legal Consequences for Member States of the Non-fulfilment by nternational
Organizations of the Obligations towards Third Parties, 1995, supra note 52, art. 8
[363] Chandrasekhar, S., "Cartel in a Can: the Financial Collapse of the nternational Tin Council, Northwestern
Journal of nternational Law and Business, 1989-10, pp. 310-311; S Talmon, S., "The Security Council as a
World Legislature, American Journal of nternational Law, no. 99, 2005, pp. 175-193; Klein, Pierre, "La
Responsabilit des Organisations nternationales dans les Ordres Juridiques nternes et en Droit de Gents,
supra note 23, at pg. 489

[364] Geslin, "Rflexions sur la Rpartition de la Responsabilit entre l'Organisation nternationale et ses Etats
Membres", Revue Gnrale de Droit nternational Public, 109, 2005, pg 543

[365] CJ Contentious Case concerning the Monetary Gold Removed from Rome in 1943 (taly v. France, United
Kingdom and United States), 15th June 1954, para. 19; CJ, Contentious Case concerning East Timor (Portugal
v. Australia), 30th June 1995, available in CJ Reports (1995), at 90; CJ Contentious Case on Armed Activities on
the territory of the Congo (Democratic Republic of the Congo v. Uganda), CJ Reports, 2005, paras. 198-204.

[366] Amerasinghe, C.F., "Principles of the nstitutional Law of nternational Organizations, supra note 60, at pg.
370; Klabbers, Jan, "ntroduction to nternational nstitutional Law, supra note 15, atpg. 370; Klein, P. and
Sands, P., "Bowett's Law of nternational nstitutions, Sweet and Maxwell (eds.), 5th edition, London, 2001,
pg.478; Third Restatement of Foreign Relations Law of the United States, 1986, para. 467, para.1

[367] Reinisch, August, and Weber, Ulf Andreas, "n The Shadow of Waite and Kennedy: the Jurisdictional
mmunity of nternational Organizations, the ndividual's Rights of Access to the Courts and Administrative
Tribunals as Alternative Means of Dispute Settlement, nternational Organizations Law Review 1, 2004, pg. 59

[368] United Nations Charter, supra note 27, art. 105

[369] UN Office of Legal Affaris, Memorandum to the Legal Adviser, UNRWA, UNJYB, 1984, p. 188; Reinisch,
August, "nternational Organizations before National Courts, Cambridge University Press, Cambridge, 2000, pg.
158; Singer, "Jurisdictional mmunity of nternational Organizations: Human Rights and Functional Necessity
Concerns, Virginia Journal of nternational Law, 1995, pg.53 and pg. 84

[370] Organization of American States' Charter, signed in Bogot in 1948 and amended by the Protocol of
Buenos Aires in 1967, by the Protocol of Cartagena de ndias in 1985, by the Protocol of Washington in 1992,
and by the Protocol of Managua in 1993, art. 133; World Health Organization Constitution, signed on the 22nd
July 1946 and entered into force on the 7th April 1948, art. 67, letter a; Agreement Establishing the WTO, signed
at Marrakech in 1994, entered into force 1st January 1995, Art. V, para. 2; Statute of the Council of Europe,
signed in London the 5th May 1949, ETS No. 1, art. 40, letter a
[371] Statute of the Council of Europe, signed in London the 5th May 1949, ETS No. 1, art. 40, letter a

F5H/G Agreement between Food and Agriculture Organization of the United Nations and taly regarding the
Headquarters of the FAO, signed in Washington the 31th October 1950, registered by the FAO the 25th October
1985, Art. V, s.16; Headquarters Agreement between the Government of the United Kingdom and the
nternational Tin Council, signed at London the 9th February 1972, registered by the United Kingdom of Great
Britain and Northern reland on 27 July 1976, art. 8; General Agreement on Privileges and mmunities of the
Council of Europe, signed in Paris the2nd September 1949 and entered into force the 10th of September 1952,
art. 3

[373] R Reinisch, August, and Weber, Ulf Andreas, "n The Shadow of Waite and Kennedy: the Jurisdictional
mmunity of nternational Organizations, the ndividual's Rights of Access to the Courts and Administrative
Tribunals as Alternative Means of Dispute Settlement, supra note 367, at pg. 61

F5H:G Third Restatement of Foreign Relations Law of the United States, 1986; United States Foreign Sovereign
mmunities Act (FSA) 1976, 90 Stat. 2891, 28 U.S.C.A. para. 1330 et seq; United States nternational
Organizations mmunities Act (OA) 1945, 59 Stat. 669, 22 U.S.C.A. para.. 288 et seq. ; Corte di Cassazione
(Sezione Unite), Allied Headquarters in Southern Europe (HAFSE) v. Capocci Belmonte, Case No. 2054, 5 June
1976, para. 12

[375] European Court of Human Rights, Waite and Kennedy v. Germany Case, supra note 186, para. 63

[376] Reinisch, August, and Weber, Ulf Andreas, "n The Shadow of Waite and Kennedy: the Jurisdictional
mmunity of nternational Organizations, the ndividual's Rights of Access to the Courts and Administrative
Tribunals as Alternative Means of Dispute Settlement, supra note 367, at pg. 68

[377] CJ Advisory Opinion on the Difference Relating to mmunity from Legal Process of a Special Rapporteur of
the Commission on Human Rights, supra note 284, para. 66; Convention on the Privileges and mmunities of the
United Nations, adopted by the United Nations General Assembly the 13th of February 1946, art. V, s. 29 (a);
CJ Advisory Opinion on the Effect of Awards of Compensation Made by The United Nations Administrative
Tribunal, July 13th 1954, pg. 57

[378] Reinisch, August, and Weber, Ulf Andreas, "n The Shadow of Waite and Kennedy: the Jurisdictional
mmunity of nternational Organizations, the ndividual's Rights of Access to the Courts and Administrative
Tribunals as Alternative Means of Dispute Settlement, supra note 367, at pg. 72; see also Cour de Cassation
Franais, Annual Report of 1995, pg. 418; Ruzi, "Diversit des Juridictions Administratives nternationales et
Finalit Commune. Rapport Gnral", Socit Franaise pour le Droit nternational (ed.), Le Contentieux de la
Fonction Publique nternational, Paris, 1996

[379] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility
of Member States, supra note 15, at pg. 108

[380] Antico Testamento, Ecclesiaste, cap.3,1

[381] D'Aspremont, Jean, "Abuse of the Legal Personality of nternational Organizations and the Responsibility
of Member States, supra note 15, at pg. 117